2011-21097. Approval and Promulgation of Implementation Plans; New York Reasonable Further Progress Plans, Emissions Inventories, Contingency Measures and Motor Vehicle Emissions Budgets

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving portions of a proposed State Implementation Plan revision submitted by New York that are intended to meet several Clean Air Act requirements for attaining the 0.08 part per million 8-hour ozone national ambient air quality standards. Specifically, EPA is approving into the SIP the following elements which are required by the Act: The 2002 base year and 2008 projection year emissions inventories, the 2008 motor vehicle emissions budgets used for planning purposes, the 2008 Reasonable Further Progress (RFP) plan, and the 2008 RFP Plan contingency measures as they apply to the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT 8-hour ozone moderate nonattainment area. EPA is also approving the 2002 base year emissions inventory for the Poughkeepsie 8-hour ozone moderate nonattainment area and the state-wide 2002 base year ozone emissions inventory.

DATES:

Effective Date: This rule is effective on September 19, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2010-1058. 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 II Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 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:

Raymond K. Forde, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10278, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On March 31, 2011 (76 FR 17801), EPA proposed approval of the New York State Implementation Plan (SIP) submitted on February 8, 2008 and supplemented on December 28, 2009 and January 26, 2011. The SIP submittal addresses the requirements for the New York portion of the New York-Northern New Jersey-Long Island and Poughkeepsie 8-hour ozone moderate nonattainment areas. The New York portion of the New York-Northern New Jersey-Long Island area is composed of the five boroughs of New York City and the counties of Nassau, Suffolk, Westchester and Rockland (referred to as the New York Metro Area). The Poughkeepsie area is composed of Dutchess, Orange and Putnam counties.

The following Clean Air Act (CAA) requirements were the subject of the March 31, 2011 proposal: The 2002 base year emissions inventory, the 2008 projection year emissions inventories, the 2008 motor vehicle emissions budgets used for planning purposes, the 2008 RFP plan, the 2008 RFP Plan contingency measures as they apply to the New York portion of the New York Metro ozone moderate nonattainment area, the 2002 base year emissions inventory for the Poughkeepsie 8-hour ozone moderate nonattainment area and the state-wide 2002 base year ozone emissions inventory.

With respect to the Poughkeepsie area, EPA has evaluated its air quality monitoring data and has determined the Poughkeepsie area has attained the 8-hour ozone standard. On December 7, 2009, EPA announced this determination in the Federal Register (74 FR 63993). Consistent with 40 CFR 51.918, this determination suspends the requirements for various SIP items, including, the requirement to submit an attainment demonstration, an RFP plan, and section 172(c)(9) contingency measures for the eight-hour ozone NAAQS for so long as the area continues to attain the ozone NAAQS. Therefore, EPA is not taking action on these proposed SIP elements for the Poughkeepsie area that are contained in the 8-hour ozone SIP proposal that was submitted to EPA on February 8, 2008. However, EPA is taking action on the 2002 base year emissions inventory for the Poughkeepsie Area.

A detailed discussion of the SIP revisions and EPA's rationale for approving them is contained in the March 31, 2011 proposal and will not be restated here. The reader is referred to the proposal for more details.

II. Public Notice

EPA received no comments in response to the March 31, 2011 proposal. Therefore, in this action, EPA is approving New York's plans.

III. Conclusion

EPA has evaluated New York's submittal for consistency with the Clean Air Act and Agency regulations and policy. EPA is approving into the SIP the following components for the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT 8-hour ozone moderate nonattainment area which are required by the Act: the 2002 base and 2008 projection year emissions inventories, the 2008 motor vehicle emissions budgets used for planning purposes, the 2008 RFP plan, and the 2008 RFP Plan contingency measures. These components were submitted to EPA by New York in a package entitled “New York SIP for Ozone—Attainment Demonstration for New York Metro Area,” dated February 8, 2008 and supplemented on December 28, 2009 and January 26, 2011.

EPA is also approving the 2002 base year emissions inventory for the Poughkeepsie 8-hour ozone moderate nonattainment area and the state-wide 2002 base year emissions inventory. New York submitted these revisions to EPA for review and approval on February 8, 2008 in a package entitled, “New York SIP for Ozone—Attainment Demonstration for Poughkeepsie, NY Area” and supplemented on December 28, 2009 and January 26, 2011.

IV. 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 October 17, 2011. 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
• Carbon monoxide
• Incorporation by reference,

Dated: August 4, 2011.

Judith A. Enck,

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 an entry to end of table in paragraph (e) to read as follows:

§ 52.1670

Identification of plan.

* * * * *

(e) * * *

Action/SIP element	Applicable geographic or nonattainment area	New York submittal date	EPA approval date	Explanation
*         *         *         *         *         *         *
2002 base year emissions inventory; 2008 projection year emissions inventories; 2008 motor vehicle emissions budgets used for planning purposes; 2008 ozone reasonable further progress (RFP) plan; and 2008 RFP Plan contingency measures.	New York portion of the New York-Northern New Jersey-Long Island 8-hour ozone nonattainment area	2/8/2008 supplemented on 12/28/2009 and 1/26/2011	August 18, 2011
2002 base year emissions inventory	Poughkeepsie 8-hour ozone moderate nonattainment area	2/8/2008 supplemented on 12/28/2009 and 1/26/2011	August 18, 2011
2002 base year emissions inventory	State-wide	2/8/2008 supplemented on 12/28/2009 and 1/26/2011	August 18, 2011

3. Section 52.1683 is amended by adding paragraph (l) to read as follows:

§ 52.1683

Control Strategy: Ozone.

* * * * *

(l)(1) The following State Implementation Plan (SIP) elements are approved: The 2002 base year emissions inventory, the 2008 projection year emissions inventories, the 2008 motor vehicle emissions budgets used for planning purposes, the 2008 ozone reasonable further progress (RFP) plan, and the 2008 RFP Plan contingency measures as they apply to the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT 8-hour ozone moderate nonattainment area. These elements are included in the package entitled “New York SIP for Ozone-Attainment Demonstration for New York Metro Area,” dated February 8, 2008 and supplemented on December 28, 2009 and January 26, 2011.

(2) The following SIP elements are approved: The 2002 base year emissions inventory for the Poughkeepsie 8-hour ozone moderate nonattainment area and the state-wide 2002 base year emissions inventory. These elements are included in a package entitled, “New York SIP for Ozone-Attainment Demonstration for Poughkeepsie, NY Area,” dated February 8, 2008 and supplemented on December 28, 2009 and January 26, 2011.