Approval and Promulgation of Implementation Plans; Revisions to the New York State Implementation Plan for Ozone

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

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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]

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