Approval and Promulgation of Implementation Plans; New York

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY29-1-187a; FRL-6193-5]

Approval and Promulgation of Implementation Plans; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating a

correction to the State Implementation Plan (SIP) for the State of New

York regarding the State's general prohibition on air pollution. EPA

has determined that this rule was erroneously incorporated into the

SIP. EPA is removing this rule from the approved New York SIP because

the rule does not have a reasonable connection to the national ambient

air quality standards (NAAQS) and related air quality goals of the

Clean Air Act. The intended effect of this correction to the SIP is to

make the SIP consistent with the requirements of the Clean Air Act, as

amended in 1990 (``the Act''), regarding EPA action on SIP submittals

and SIPs for national primary and secondary ambient air quality

standards.

EFFECTIVE DATE: This direct final rule is effective on January 26, 1999

without further notice, unless EPA receives adverse comment by December

28, 1998. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Ronald Borsellino,

Chief, Air Programs Branch, Environmental Protection Agency, Region II

Office, 290 Broadway, New York, New York 10007-1866.

Copies of the documents relevant to this action are available for

inspection during normal business hours at the following address:

Environmental Protection Agency, Region II Office, Air Programs

Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.

FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, 25th floor, New York,

New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

I. Correction to SIP

EPA has determined that Part 211.2 of Title 6 of the New York Code

of Rules and Regulations (NYCRR), which was approved in 1984 as part of

the SIP, does not have a reasonable connection to the NAAQS and related

air quality goals of the Clean Air Act and is not properly part of the

SIP.

Part 211.2 is a general prohibition against air pollution. Such a

general provision is not designed to control NAAQS pollutants such that

EPA could rely on it as a NAAQS attainment and maintenance strategy.

After it came to the attention of EPA that Part 211.2 was not properly

part of the SIP, EPA in turn brought the matter to the attention of the

New York State Department of Environmental Conservation (NYSDEC).

NYSDEC shared EPA's understanding that Part 211.2 was improperly

approved into the SIP.

EPA, pursuant to section 110(k)(6) of the Act, is correcting the

SIP since Part 211.2 is not reasonably related to the NAAQS-related air

quality goals of the Act. Section 110(k)(6) of the amended Act

provides: ``Whenever the Administrator determines that the

Administrator's action approving, disapproving, or promulgating any

plan or plan revision (or part thereof), area designation,

redesignation, classification or reclassification was in error, the

Administrator may in the same manner as the approval, disapproval, or

promulgation revise any such action as appropriate without requiring

any further submission from the State. Such determination and the basis

thereof shall be provided to the State and the public.'' It should be

noted that section 110(k)(6) has also been used by EPA to delete an

improperly approved odor provision from the Wyoming SIP. 61 FR 47058

(1996).

Since the State of New York's Part 211.2 has no reasonable

connection to the NAAQS-related air quality goals of the Act, EPA has

found that the approval of this State rule was in error. The State has

reached the same conclusion and concurs with EPA's decision that Part

211.2 was submitted and approved in error and should be removed from

the approved SIP. Consequently, EPA is removing 6 NYCRR Part 211.2 from

the approved New York SIP, pursuant to section 110(k)(6) of the Act.

II. EPA Final Rulemaking Action

EPA is removing 6 NYCRR Part 211.2 of the New York air quality

Administrative Rules from the approved New York SIP pursuant to section

110(k)(6) of the Act.

EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial amendment and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

relevant adverse comments be filed. This rule will be effective January

26, 1999 without further notice unless the Agency receives relevant

adverse comments by December 28, 1998.

If EPA receives such comments, then EPA will publish a timely

withdrawal of the final rule informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. EPA will not

institute a second comment period on this rule. Any parties interested

in commenting on this rule should do so at this time. If no such

comments are received, the public is advised that this action will be

effective on January 26, 1999 and no further action will be taken on

the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.)

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12866, entitled ``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If EPA complies by consulting, Executive Order 12875

requires EPA to provide to the Office of Management and Budget a

description of the extent of EPA's prior consultation with

representatives of affected State, local and tribal governments, the

nature of their concerns, copies of any written communications from the

governments, and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of E.O. 12875

do not apply to this rule.

C. 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 E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly 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, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to 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. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. 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).

F. 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.

G. 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).

H. 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 January 26, 1999. 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

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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, Intgovernmental

relations, Reporting and recordkeeping.

Dated: November 16, 1998.

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 52.1679 is amended by revising the entry for ``Part 211,

General Prohibitions'' 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 date Comments

date

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Part 211, General Prohibitions........... 8/11/83 November 27, 1998 [citation Section 211.2 has been

of this document]. removed from the approved

plan.

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[FR Doc. 98-31542 Filed 11-25-98; 8:45 am]

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