Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Proposed Rules 42813 

comments, and for information on how 

to request a public hearing. 

You may view copies of this notice, 

Notice No. 95, any comments received, 

the related temporary rule (T.D. TTB– 

78), and a correction to the temporary 

rule (T.D. TTB–80) at http:// 

www.regulations.gov. A direct link to 

the related Regulations.gov docket also 

is available under Notice No. 95 on the 

TTB Web site at http://www.ttb.gov/ 

regulations_laws/all_rulemaking.shtml. 

You also may view copies of these 

documents by appointment at the TTB 

Information Resource Center, 1310 G 

Street, NW., Washington, DC 20220. To 

make an appointment, call 202–453– 

2270 (new phone number). 

FOR FURTHER INFORMATION CONTACT: For 

questions concerning processed tobacco 

permit and authorization procedures, 

contact the National Revenue Center, 

Alcohol and Tobacco Tax and Trade 

Bureau at 1–877–882–3277; for other 

questions concerning this document, 

Notice No. 95, or the related temporary 

rule, contact Amy Greenberg, 

Regulations and Rulings Division, 

Alcohol and Tobacco Tax and Trade 

Bureau at 202–453–2099 (new phone 

number). 

SUPPLEMENTARY INFORMATION: In the 

Federal Register issue of June 22, 2009, 

the Alcohol and Tobacco Tax and Trade 

Bureau (TTB) published a temporary 

rule (T.D. TTB–78; 74 FR 29401) setting 

forth regulatory amendments to 27 CFR 

parts 40, 41, 44, and 45 to implement 

certain changes made to the Internal 

Revenue Code of 1986 by the Children’s 

Health Insurance Program 

Reauthorization Act of 2009 (CHIPRA) 

(Pub. L. 111–3, 123 Stat. 8). The 

principal changes made by CHIPRA 

involve permit and related requirements 

for manufacturers and importers of 

processed tobacco and an expansion of 

the definition of roll-your-own tobacco. 

In the same issue of the Federal 

Register, we concurrently published a 

notice of proposed rulemaking, Notice 

No. 95 (74 FR 29433), to request 

comments on the regulatory 

amendments contained in the temporary 

rule. The preamble to the temporary 

regulations explained the proposed 

regulations. As originally published, 

comments on Notice No. 95 were due on 

August 21, 2009. (On July 29, 2009, we 

published corrections to the temporary 

rule in T.D. TTB–80 at 74 FR 37551.) 

On August 19, 2009, TTB received a 

letter from a law firm representing the 

John Middleton Co., Philip Morris USA 

Inc., and U.S. Smokeless Tobacco 

Manufacturing Co. LLC, requesting an 

extension of the comment period for 

Notice No. 95. In the letter, the requester 

noted the temporary rule’s immediate 

effective date and the fact that TTB 

issued the temporary rule and the 

related notice of proposed rulemaking 

just before the annual TTB Expo, which 

was attended by many company 

officials. The letter stated these events 

gave the companies ‘‘little time to digest 

the implications of the temporary rule 

prior to the Expo * * *.’’ Since 

returning from the Expo, the companies 

have found ‘‘the process of identifying 

all activity within the factories that 

might have implications for processed 

tobacco’’ to be ‘‘extensive and time 

consuming.’’ 

The letter also noted that the TTB 

temporary rule was issued on the same 

day as the enactment of the Family 

Smoking Prevention and Tobacco 

Control Act, which provides for 

regulation of tobacco products by the 

Food and Drug Administration. ‘‘Thus,’’ 

the letter states, ‘‘key personnel within 

the Companies and other industry 

entities were involved in evaluation of 

this legislation and identification of its 

implications for their operations.’’ The 

letter additionally noted that the 

comment period on the proposed rule 

coincided with the summer vacation 

season when company officials are most 

likely to be away from their offices. 

Given the factors cited above, TTB 

agrees that the comment period for 

Notice No. 95 should be extended by an 

additional 60 days. Therefore, 

comments on Notice No. 95 are now due 

on October 20, 2009. 

Drafting Information 

Michael Hoover of the Regulations 

and Rulings Division, Alcohol and 

Tobacco Tax and Trade Bureau, drafted 

this document. 

Signed: August 20, 2009. 

Cheri D. Mitchell, 

Acting Administrator. 

[FR Doc. E9–20404 Filed 8–24–09; 8:45 am] 

BILLING CODE 4810–31–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2009–0462, FRL–8949–1] 

Approval and Promulgation of 

Implementation Plans; New York 

Reasonably Available Control 

Technology and Reasonably Available 

Control Measures 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing action on 

portions of a State Implementation Plan 

revision submitted by New York State 

that are intended to meet some Clean 

Air Act requirements for attaining the 

0.08 parts per million 8-hour ozone 

national ambient air quality standards. 

EPA is proposing to disapprove the 

reasonably available control technology 

requirement as it relates to the entire 

State of New York, including the New 

York portion of the New York-Northern 

New Jersey-Long Island, NY–NJ–CT and 

the Poughkeepsie 8-hour ozone 

moderate nonattainment areas. 

In addition, EPA is proposing to 

disapprove the reasonably available 

control measure analysis as it relates to 

the New York portion of the New YorkNorthern New Jersey-Long Island, NY– 

NJ–CT 8-hour ozone moderate 

nonattainment area. 

DATES: Comments must be received on 

or before September 24, 2009. 

ADDRESSES: Submit your comments, 

identified by Docket Number EPA–R02– 

OAR–2009–0462, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: Werner.Raymond@epa.gov. 

• Fax: 212–637–3901. 

• Mail: Raymond Werner, Chief, Air 

Programs Branch, Environmental 

Protection Agency, Region 2 Office, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866. 

• Hand Delivery: Raymond Werner, 

Chief, Air Programs Branch, 

Environmental Protection Agency, 

Region 2 Office, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866. Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

Instructions: Direct your comments to 

Docket No. EPA–R02–OAR–2009–0462. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
42814 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Proposed Rules 

1Unless otherwise specifically noted in the 

action, references to the 8-hour ozone standard are 

to the 0.08 ppm ozone standard promulgated in 

1997. 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters or any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. 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, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in 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. EPA requests, if 

at all possible, that you contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view 

the hard copy of the docket. You may 

view the hard copy of the docket 

Monday through Friday, 8 a.m. to 4 

p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Kirk 

Wieber (wieber.kirk@epa.gov), Air 

Programs Branch, Environmental 

Protection Agency, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866, (212) 637–4249. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Action Is EPA Proposing? 

II. Background Information 

A. What Are the Act Requirements for a 

Moderate 8-hr Ozone Nonattainment 

Area? 

1. History and Time Frame for the State’s 

Attainment Demonstration SIP 

2. Moderate Area Requirements 

III. What Was Included in New York’s SIP 

Submittals? 

IV. EPA’s Review and Technical Information 

A. Reasonably Available Control 

Technology (RACT) for Stationary 

Sources 

1. What Are the Act Requirements? 

2. How Did New York Perform its RACT 

Analysis? 

3. What Were the Results of New York’s 

Analysis of RACT for Stationary 

Sources? 

4. What Is EPA’s Evaluation? 

B. Reasonably Available Control Measures 

(RACM) Analysis 

1. What Are the Act Requirements? 

2. How Did New York Perform its RACM 

Analysis? 

3. What Were the Results of the RACM 

Analysis? 

4. What Is EPA’s Evaluation? 

V. What Are EPA’s Conclusions? 

VI. What Are the Consequences if EPA 

Finalizes the Proposed Disapproval? 

A. What Are the Act’s Provisions for 

Sanctions? 

B. What Federal Implementation Plan 

Provisions Apply if a State Fails To 

Submit an Approvable Plan? 

VII. What Future Actions/Options Are 

Available for New York Regarding an 

Approvable 8-hour Ozone SIP? 

VIII. What is the Status of New York’s 

Reclassification Request? 

IX. Statutory and Executive Order Reviews 

I. What Action Is EPA Proposing? 

The Environmental Protection Agency 

(EPA) has reviewed elements of New 

York’s comprehensive State 

Implementation Plan (SIP) revisions for 

the 0.08 parts per million (ppm) 8-hour 

ozone national ambient air quality 

standards (NAAQS or standard) 1 along 

with other related Clean Air Act (Act) 

requirements necessary to ensure 

attainment of the standard. The EPA is 

proposing to disapprove the reasonably 

available control measure (RACM) 

analysis and New York’s efforts to meet 

the reasonably available control 

technology (RACT) requirement. 

New York provided additional 

information on July 31, 2009, which 

supplements the state-wide 2002 base 

year emissions inventory, the ozone 

projection emission inventory, the 

conformity budgets, the reasonable 

further progress (RFP) plan, and the 

contingency measures. EPA is reviewing 

this information and will make a 

decision in the near future as to whether 

New York has satisfied the requirements 

of the Act. EPA is also continuing to 

review the attainment demonstration, 

the new source review provisions and 

New York’s request for a voluntary 

reclassification of the New YorkNorthern New Jersey-Long Island, NY– 

NJ–CT 8-hour ozone nonattainment area 

from ‘‘moderate’’ to ‘‘serious’’ and plans 

to address the other components of the 

SIP submittals in one or more separate 

proposals in the near future. 

EPA’s analysis and findings are 

discussed in this proposed rulemaking 

and a more detailed discussion is 

contained in the Technical Support 

Document for this Proposal, which is 

available online at http:// 

www.regulations.gov, Docket number 

EPA–R02–OAR–2009–0462. 

II. Background Information 

A. What Are the Act Requirements for 

a Moderate 8-hr Ozone Nonattainment 

Area? 

1. History and Time Frame for the 

State’s Attainment Demonstration SIP 

In 1997, EPA revised the health-based 

NAAQS for ozone, setting it at 0.08 ppm 

averaged over an 8-hour period. EPA set 

the 8-hour ozone standard based on 

scientific evidence demonstrating that 

ozone causes adverse health effects at 

lower ozone concentrations and over 

longer periods of time than was 

understood when the pre-existing 1- 

hour ozone standard was set. EPA 

determined that the 8-hour standard 

would be more protective of human 

health, especially with regard to 

children and adults who are active 

outdoors, and individuals with a preexisting respiratory disease, such as 

asthma. 

On April 30, 2004 (69 FR 23951), EPA 

finalized its attainment/nonattainment 

designations for areas across the country 

with respect to the 8-hour ozone 

standard. These actions became 

effective on June 15, 2004. The three 8- 

hour ozone moderate nonattainment 

areas located in New York State are, the 

New York-Northern New Jersey-Long 

Island, NY–NJ–CT nonattainment area, 

the Poughkeepsie nonattainment area; 

and the Jefferson County nonattainment 

area. The New York portion of the New 

York-Northern New Jersey-Long Island, 

NY–NJ–CT nonattainment area is 

composed of the five boroughs of New 

York City and the surrounding counties 

of Nassau, Suffolk, Westchester and 

Rockland. This is collectively referred to 

as the New York City Metropolitan Area 

or NYMA. The Poughkeepsie 

nonattainment area is composed of 

Dutchess, Orange and Putnam counties. 

On March 25, 2008 (73 FR 15672) EPA 

determined that Jefferson County 

attained the 8-hour ozone standard. 

These designations triggered the Act’s 

requirements under section 182(b) for 

moderate nonattainment areas, 

including a requirement to submit a 

demonstration of attainment. To assist 

states in meeting the Act’s requirements 


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for ozone, EPA released an 8-hour ozone 

implementation rule in two Phases. 

EPA’s Phase 1 8-hour ozone 

implementation rule, published on 

April 30, 2004 (69 FR 23951) and 

referred to as the Phase 1 Rule, specifies 

that states must submit these attainment 

demonstrations to EPA by no later than 

three years from the effective date of 

designation, that is, submit them by 

June 15, 2007. 

2. Moderate Area Requirements 

On November 9, 2005, EPA published 

Phase 2 of the 8-hour ozone 

implementation rule (70 FR 71612) and 

referred to as the Phase 2 Rule, which 

addressed the control obligations that 

apply to areas designated nonattainment 

for the 8-hour NAAQS. Among other 

things, the Phase 1 and Phase 2 Rules 

outline the SIP requirements and 

deadlines for various requirements in 

areas designated as moderate 

nonattainment. For such areas, RACT 

plans were due by September 2006 (40 

CFR 51.912(a)(2)). The rules further 

require that modeling and attainment 

demonstrations, RFP plans, RACM 

analysis, projection year emission 

inventories, motor vehicle emissions 

budgets and contingency measures were 

all due by June 15, 2007 (40 CFR 

51.908(a), and (c)). 

III. What Was Included in New York’s 

SIP Submittals? 

After completing the appropriate 

public notice and comment procedures, 

New York made a series of submittals in 

order to address the Act’s 8-hour ozone 

attainment requirements previously 

described in Section II.A.2. On 

September 1, 2006, New York submitted 

its state-wide 8-hour ozone RACT SIP, 

which included a determination that 

many of the RACT rules currently 

contained in its SIP meet the RACT 

obligation for the 8-hour standard. On 

February 8, 2008, New York submitted 

two comprehensive 8-hour ozone SIPs— 

one for the New York portion of the 

New York-Northern New Jersey-Long 

Island, NY–NJ–CT nonattainment area, 

entitled, ‘‘New York SIP for Ozone— 

Attainment Demonstration for New 

York Metro Area’’ and one for the 

Poughkeepsie nonattainment area, 

entitled, ‘‘New York SIP for Ozone— 

Attainment Demonstration for 

Poughkeepsie, NY Area’’. The 

submittals included the 2002 base year 

emissions inventory, projection year 

emissions, attainment demonstrations, 

RFP plans, RACM analysis, RACT 

analysis, contingency measures, new 

source review and on-road motor 

vehicle emission budgets. These SIP 

revisions were subject to notice and 

comment by the public and the State 

addressed the comments received on the 

proposed SIPs before adopting the plans 

and submitting them for EPA review 

and rulemaking action. 

On July 31, 2009, New York provided 

supplemental information intended to 

clarify its February 8, 2008 ozone SIP 

submittals. EPA is reviewing this 

information and will make a decision in 

the near future as to whether New York 

has satisfied the requirements of the 

Act. 

With respect to the Poughkeepsie 

area, EPA is in the process of evaluating 

its air quality monitoring data. It 

appears that the Poughkeepsie area may 

have attained the 8-hour ozone 

standard. If this turns out to be the case, 

consistent with 40 CFR 51.918, certain 

requirements of subpart 2 of part D of 

title I of the Act, namely reasonable 

further progress (including projection 

year inventories), attainment 

demonstration, RACM analysis and 

contingency measures, may no longer 

apply to the Poughkeepsie area. 

Therefore, EPA is not taking action at 

this time on these SIP elements for the 

Poughkeepsie area that are contained in 

the 8-hour ozone SIP that was submitted 

to EPA on February 8, 2008. However, 

EPA is taking action on the RACT SIP 

for the Poughkeepsie Area. 

In addition to the previously 

mentioned 8-hour ozone SIP submittals, 

on April 4, 2008, New York submitted 

to EPA a request for a voluntary 

reclassification of the New YorkNorthern New Jersey-Long Island, NY– 

NJ–CT 8-hour ozone nonattainment area 

from ‘‘moderate’’ to ‘‘serious’’ pursuant 

to section 181(b)(3) of the Act. At this 

time, EPA is continuing to review New 

York’s request for a voluntary 

reclassification of the New YorkNorthern New Jersey-Long Island, NY– 

NJ–CT 8-hour ozone nonattainment area 

and plans to address New York’s request 

in a separate proposed action in the near 

future. 

IV. EPA’s Review and Technical 

Information 

A. Reasonably Available Control 

Technology (RACT) for Stationary 

Sources 

1. What Are the Act Requirements? 

Sections 172(c)(1), 182(b)(2) and 

182(f) of the Act require nonattainment 

areas that are designated as moderate or 

above for ozone to adopt RACT. Section 

184(b)(1) of the Act requires that these 

RACT provisions apply to all areas 

(such as the entire State of New York) 

that are located in an Ozone Transport 

Region. In accordance with section 

182(b), New York must, at a minimum, 

adopt RACT level controls for sources 

covered by a Control Techniques 

Guidelines (CTG) document and for any 

non-CTG sources that are major 

according to the threshold for the area. 

EPA has defined RACT as the lowest 

emission limitation that a particular 

source is capable of meeting by the 

application of control technology that is 

reasonably available considering 

technological and economic feasibility. 

In EPA’s Phase 2 Rule to implement 

the 8-hour ozone standard, Section IV.G 

discusses the RACT requirements. It 

states, in part, where a RACT SIP is 

required, SIPs implementing the 8-hour 

standard generally must assure that 

RACT is met, either through a 

certification that previously required 

RACT controls represent RACT for 8- 

hour implementation purposes or, 

where necessary, through a new RACT 

determination. The counties in the 

NYMA (and part of Orange County) 

were previously classified under the 1- 

hour ozone NAAQS as severe, requiring 

RACT, while the remaining counties in 

the State were subject to RACT as part 

of a moderate classification or as part of 

the Ozone Transport Region. In the 

NYMA and a portion of Orange County, 

the previous severe classification 

resulted in a requirement for major 

sources to be defined as those having 

emissions of 25 tons per year or more 

for either VOC or NOx. 

In areas classified as moderate or 

areas located in the Ozone Transport 

Region (which includes all of New York 

State) under the 8-hour ozone standard, 

the definition for major sources in New 

York would have been 50 tons per year 

for VOC and 100 tons per year for NOx. 

New York chose to retain the 1-hour 

ozone plan emission threshold of 25 

tons per year in the NYMA and a 

portion of Orange County for purposes 

of the RACT analysis which results in 

a more stringent evaluation of RACT. 

The rest of the State follows the 

moderate major source definition as 

previously mentioned. 

2. How Did New York Perform Its RACT 

Analysis? 

New York submitted a state-wide 

RACT assessment in a SIP revision 

dated September 1, 2006. In that 

submittal, New York evaluated its 

existing RACT regulations which were 

adopted to meet the 1-hour ozone 

standard, to ascertain whether the same 

regulations constitute RACT for the new 

8-hour ozone NAAQS. New York’s 8- 

hour ozone RACT SIP submittal is based 

on the determination that RACT has 

been met either through a certification 

that previously required RACT controls 

for the 1-hour ozone standard represent 


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2 Information available at EPA’s technology 

transfer network: http://cfpubl.epa.gov/rblclhtm/ 

bl02.cfm. 

3Serious and Severe Ozone Nonattainment areas: 

Information on emissions, control measures 

adopted or planned and other available control 

measures. EPA, November 1999. 

RACT for 8-hour ozone implementation 

purposes or, where necessary, through a 

new RACT reevaluation for certain 

regulations or sources. In making its 8- 

hour ozone RACT determination, New 

York relied on EPA’s RACT guidance 

(‘‘Cost-Effective NOX RACT’’ March 16, 

1994), EPA’s RACT Question and 

Answer document (May 18, 2006) and 

New York’s Air Guide 20, ‘‘Economic 

and Technical Analysis for Reasonably 

Available Control Technology’’ (January 

24, 1996). Accordingly, the basic 

framework for New York’s RACT SIP 

determination is described below: 

• Identify all source categories 

covered by Control Technique 

Guidelines (CTG) and Alternative 

Control Technique (ACT) documents. 

• Identify applicable regulations that 

implement RACT. 

• Certify that the existing level of 

controls for the 1-hour ozone standard 

equals RACT under the 8-hour ozone 

standard in certain cases. 

• Declare that sources covered by a 

CTG and ACT do not exist within the 

state and/or that RACT is not applicable 

in certain cases. 

• Identify and evaluate applicability 

of RACT to individual sources not 

covered by state-wide regulation. 

• Identify potential RACT revisions. 

3. What Were the Results of New York’s 

Analysis of RACT for Stationary 

Sources? 

New York certified that all RACT 

regulations with effective dates from 

1996 to the date when the RACT 

analysis was performed (2006) are 

RACT for the 8-hour ozone NAAQS 

because the associated economic 

feasibility calculations are consistent 

with the ten-year amortization period 

for control equipment in typical RACT 

analyses. Additionally, based on the 

review of current technologies,2 New 

York found no data indicating that the 

existing levels of control for these 

source categories are no longer RACT. 

To determine RACT applicability for 

measures with an effective date prior to 

1996, New York performed a reevaluation by using EPA’s guidance and 

comparing control measures to those 

currently enacted by other 1-hour ozone 

nonattainment areas.3

a. CTGs and ACTs 

New York reviewed its existing RACT 

regulations adopted under the 1-hour 

ozone standard to identify sources 

categories covered by EPA’s CTG and 

ACT documents. New York’s RACT SIP 

submittal lists the CTG and ACT 

documents and corresponding State 

RACT regulations that cover the CTG 

and ACT sources included in New 

York’s emission inventory. For major 

non-CTG sources, the provisions in Title 

6 of the New York Codes, Rules and 

Regulations (6 NYCRR) Part 212 

‘‘General Process Emission Sources’’ 

regulate RACT compliance. 

New York has implemented RACT 

controls state-wide for the 53 CTGs and 

ACTs that EPA has issued as of 

September 2006 to meet the 

requirements of the Act. Table 5 lists the 

RACT controls that have been 

promulgated in 6NYCRR and the 

corresponding EPA SIP approval dates. 

TABLE 5—NEW YORK ADOPTED RACT REGULATIONS

NY regulation Title EPA approval date 

Part 205 ............ Architectural and Industrial Maintenance Coatings ........................................................................ 12/13/04, 69 FR 72118. 

Part 211 ............ General Prohibitions ........................................................................................................................ 11/27/98, 63 FR 65559. 

Part 212 ............ General Process Emission Sources ............................................................................................... 9/25/01, 66 FR 48961. 

Part 216 ............ Iron and/or Steel Processes ........................................................................................................... 7/20/06, 71 FR 41163. 

Part 220 ............ Portland Cement Plants .................................................................................................................. Submitted but not approved 

into the SIP. 

Part 223 ............ Petroleum Refineries ....................................................................................................................... 7/19/85, 50 FR 29382. 

Part 224 ............ Sulfuric and Nitric Acid Plants ........................................................................................................ 7/19/85, 50 FR 29382. 

Part 226 ............ Solvent Metal Cleaning Processes ................................................................................................. 1/23/04, 69 FR 3240. 

Part 227–2 ........ Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NOX) ........................ 1/13/05, 70 FR 2358. 

Part 228 ............ Surface Coating Processes ............................................................................................................ 1/23/04, 69 FR 3240. 

Part 229 ............ Petroleum and Volatile Organic Liquid Storage and Transfer ........................................................ 12/23/97, 62 FR 67006. 

Part 230 ............ Gasoline Dispensing Sites and Transport Vehicles ....................................................................... 4/30/98, 63 FR 23668. 

Part 232 ............ Dry Cleaning ................................................................................................................................... 6/17/85, 50 FR 25079. 

Part 233 ............ Pharmaceutical and Cosmetic Processes ...................................................................................... 12/23/97, 62 FR 67006. 

Part 234 ............ Graphic Arts .................................................................................................................................... 12/23/97, 62 FR 67006. 

Part 236 ............ Synthetic Organic Chemical Manufacturing Facility Component Leaks ......................................... 7/27/93, 58 FR 40059 

The New York RACT SIP submittal 

contains a table (see Table 2—RACT 

Source Categories) listing all the CTG 

and ACT categories (53 categories in 

total) and the corresponding State 

regulations that address the 

requirements. EPA had previously 

approved and incorporated into the SIP 

all but Part 220 of the State regulations. 

For many source categories, the 

existing New York rules go beyond the 

recommendations contained in the 

CTG/ACT documents in terms of more 

stringent emission limits and lower 

thresholds of applicability. New York 

identified some categories where 

controls may be more stringent than the 

recommended levels contained in the 

CTG/ACT documents and these are 

identified in Section A.3.d below. Based 

on the September 1, 2006 RACT 

evaluation, New York states that the 

existing RACT rules for the remaining 

CTG and ACT categories met the RACT 

requirement for the 8-hour ozone 

NAAQS implementation purposes. 

b. Source Categories not Applicable in 

New York State 

New York previously certified to the 

satisfaction of EPA (40 CFR 52.1683) 

that no sources are located in the 

nonattainment area of the State that are 

covered by the following CTGs: (1) 

Natural Gas/Gasoline Processing Plants; 

(2) Air Oxidation Processes at Synthetic 

Organic Chemical Manufacturing 

Industries; and (3) Manufacture of HighDensity Polyethylene, Polypropylene, 

and Polystyrene Resins. New York has 

reviewed its emission inventory and 


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emission statements as required under 6 

NYCRR 202–2, entitled, ‘‘Emission 

Statement’’ for stationary sources and 

reaffirmed that either there are no 

sources within New York State or that 

there are no sources within New York 

State that exceed the applicability 

thresholds for the above CTGs. 

c. Source-Specific RACT Determinations 

The 8-hour ozone RACT analyses 

must address source-specific RACT as it 

applies to a single regulated entity. The 

source-specific RACT determination 

applies to sources that have obtained 

facility-specific emission limit or an 

alternative emission limit, i.e., a 

variance. A case-by-case RACT analysis 

may also be required for sources that are 

not in an established source category 

covered by an existing state regulation 

or addressed by a CTG. New York’s 

‘‘Guide for the Economic and Technical 

Analysis for Reasonably Available 

Control Technology’’ outlines the 

process and conditions for granting 

source-specific RACT variances. Under 

the Act, these individually sourcespecific RACT determinations need to 

be submitted by the State as a SIP 

revision and EPA must approve it. 

Therefore, New York included in 

Appendix D of its September 1, 2006 

RACT SIP submittal a listing of VOC 

and NOX source facilities that are 

subject to RACT source-specific SIP 

revision under the 1-hour ozone SIP and 

corresponding emission limits or 

regulations governing the variances. 

Consistent with the Act, on September 

16, 2008, New York submitted to EPA 

a SIP revision that included most of the 

source-specific RACT revisions 

identified in Appendix D of the RACT 

SIP submittal. EPA is performing its 

technical review of that submittal and 

will take separate rulemaking actions in 

the near future for each of the sourcespecific determinations. 

d. Additional Control Measures Needed 

for Attainment 

In some instances, New York has 

adopted regulations with emission 

limits that are more stringent than those 

recommended by the CTGs and ACTs. 

For example, Part 205, ‘‘Architectural 

and Industrial Maintenance Coatings,’’ 

Part 226, ‘‘Solvent Metal Cleaning 

Operations,’’ Part 228, ‘‘Surface Coating 

Processes’’ have each been adopted by 

the State with more stringent limits or 

applicability than what was 

recommended by the corresponding 

CTGs. 

In addition, included in New York’s 

February 8, 2008 8-hour Ozone SIP was 

a list of additional control measures that 

are currently under development by the 

State (Section 9, ‘‘New Stationary 

Source Measures’’ of New York’s SIP). 

The State committed to adopt 

regulations applicable to the following 

source categories: Adhesives and 

Sealants, Consumer Products, Graphic 

Arts, Asphalt Formulation, Asphalt 

Paving Production, Portland Cement 

Plants, Glass Manufacturing, High 

Electric Demand Day, Distributed 

Generation, MACT and ICI Boilers 

RACT. In letters dated January 27, 2009 

and June 23, 2009, New York revised its 

schedules and commitments to adopt 

the new or revised regulations relevant 

to most of these categories until later 

dates. 

4. What Is EPA’s Evaluation? 

New York submitted a state-wide 

RACT assessment on September 1, 2006 

and supplemented the RACT 

assessment with additional information 

on September 16, 2008 and February 8, 

2008 for the NYMA. Collectively, the 

RACT submission from New York 

consists of: (1) A certification that 

previously adopted RACT controls in 

New York’s SIP for various source 

categories that were approved by EPA 

under the 1-hour ozone NAAQS are 

based on the currently available 

technically and economically feasible 

controls, and that they continue to 

represent RACT for the 8-hour ozone 

implementation purposes; (2) a number 

of source specific RACT determinations; 

(3) a negative declaration that for certain 

CTGs and/or ACTs there are no sources 

within New York State or that there are 

no sources above the applicability 

thresholds; and (4) a commitment to 

adopt new or more stringent regulations 

that represent RACT control levels for 

specific source categories. 

EPA has reviewed the State’s RACT 

analysis and has determined that the 

state-wide RACT analysis submitted on 

September 1, 2006 and supplemented 

on September 16, 2008 and February 8, 

2008 for the NYMA, does not 

adequately address the RACT 

requirement consistent with sections 

172(c)(1), 182(b)(2) and 182(f) of the 

Act, as interpreted in EPA’s regulations, 

guidance and policies. EPA’s 

determination is based on the fact that 

New York has: 

• Not adopted all RACT measures 

identified by the State as part of New 

York’s RACT SIP submitted on 

September 1, 2006 and supplemented 

on September 16, 2008 and February 8, 

2008; 

• Missed commitments to adopt all 

RACT measures according to schedules 

contained in New York’s RACT SIP 

submitted on September 1, 2006 and 

supplemented on September 16, 2008 

and February 8, 2008. The February 8, 

2008 SIP submittal included a schedule 

that identified that all new or revised 

control measures would be adopted by 

December 2008. (In a letter dated June 

23, 2009, New York has subsequently 

revised that schedule and committed to 

propose all of those measures by 

September 2009 and adopt them by 

March 2010); 

• Not adopted the necessary control 

measures to expedite attainment of the 

8-hour ozone standard consistent with 

EPA’s policy on for a voluntary 

reclassification request (see 70 FR 

71631). 

Therefore, EPA is proposing to 

disapprove New York’s state-wide 

RACT SIP, which includes the RACT 

assessment for the NYMA. EPA 

encourages New York to accelerate its 

rulemaking process and adopt control 

measures prior to the commitment date 

of March 2010 for the RACT measures 

that have been identified and committed 

to by New York in order to achieve RFP 

and attainment of the 8-hour ozone 

standard as expeditiously as practicable 

and provide for cleaner air for the 

public. 

B. Reasonably Available Control 

Measures (RACM) Analysis 

1. What Are the Act Requirements? 

Pursuant to section 172(c)(1) of the 

Act, states are required to implement all 

Reasonably Available Control Measures 

(RACM) as expeditiously as practicable. 

Specifically, section 172(c)(1) states: ‘‘In 

general—Such plan provisions shall 

provide for the implementation of all 

reasonably available control measures as 

expeditiously as practicable (including 

such reductions in emissions from 

existing sources in the area as may be 

obtained through the adoption, at a 

minimum, of reasonably available 

control technology) and shall provide 

for attainment of the national primary 

ambient air quality standards.’’ 

Furthermore, in EPA’s Phase 2 Rule, 

EPA describes how states must include 

with their attainment demonstration a 

RACM analysis (70 FR 71659). The 

purpose of the RACM analysis is to 

determine whether or not reasonably 

available control measures exist that 

would advance the attainment date for 

nonattainment areas. Control measures 

that would advance the attainment date 

are considered RACM and must be 

included in the SIP. RACM are 

necessary to ensure that the attainment 

date is achieved ‘‘as expeditiously as 

practicable.’’ 

RACM is defined by the EPA as any 

potential control measure for 

application to point, area, on-road and 


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42818 Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Proposed Rules 

non-road emission source categories 

that meets the following criteria: 

• The control measure is 

technologically feasible 

• The control measure is 

economically feasible 

• The control measure does not cause 

‘‘substantial widespread and long-term 

adverse impacts’’ 

• The control measure is not ‘‘absurd, 

unenforceable, or impracticable’’ 

• The control measure can advance 

the attainment date by at least one year. 

RACM differs from RACT in that 

RACM applies to all source categories 

and RACT applies to only stationary 

sources. 

2. How Did New York Perform Its 

RACM Analysis? 

The Ozone Transport Commission 

staff and member States, including New 

York, formed and participated in several 

workgroups to identify and evaluate 

candidate control measures that could 

be used to demonstrate attainment of 

the 8-hour ozone NAAQS. Initially, the 

workgroups compiled and reviewed a 

list of approximately 1,000 candidate 

control measures. These control 

measures were identified through 

published sources such as EPA’s CTGs, 

National Association of Clean Air 

Agencies (NACAA) ‘‘Menu of Options’’ 

documents, the AirControlNET 

database, emission control initiatives in 

member States as well as other States 

including California, state/regional 

consultations, and stakeholder input. 

The workgroups evaluated data 

regarding emissions benefits, costeffectiveness (economic feasibility) and 

implementation issues (technological 

feasibility) to develop a preliminary list 

of 30 candidate control measures to be 

considered for more detailed analysis. 

These measures were selected to focus 

on the pollutants and source categories 

that are thought to be the most effective 

in reducing ozone levels in the 

Northeastern and Mid-Atlantic regions. 

The document ‘‘Identification and 

Evaluation of Candidate Control 

Measures—Final Technical Support 

Document,’’ dated February 28, 2007, is 

included in New York’s February 8, 

2008 ozone SIP revisions as an 

Appendix as supporting documentation 

of the process and product of the 

workgroups. 

Based on the analysis conducted by 

the workgroups, the Commissioners of 

the Ozone Transport Commission 

recommended that states consider 

reductions from the following source 

categories: Consumer Products, Portable 

Fuel Containers, Adhesives and 

Sealants Applications, Diesel Engine 

Chip Reflash, Cutback and Emulsified 

Asphalt Paving, Asphalt Production 

Plants, Cement Kilns, Glass Furnaces, 

Industrial, Commercial and Institutional 

(ICI) Boilers, Regional Fuels. 

3. What Were the Results of the RACM 

Analysis? 

With the exception of Diesel Engine 

Chip Reflash and Regional Fuels, New 

York is developing new or revised 

regulations for all of the source 

categories recommended by the 

Commissioners of the Ozone Transport 

Commission that will provide for the 

implementation of all RACM and 

attainment of the 8-hour ozone standard 

as expeditiously as practicable. New 

York State determined that these 

measures represent RACM as they are 

reasonably available and can be 

expected to advance the attainment date 

and contribute to RFP. These measures, 

referred to as ‘‘Beyond On The Way’’ 

measures in the attainment modeling 

scenarios for the New York-Northern 

New Jersey-Long Island, NY–NJ–CT 8- 

hour ozone nonattainment area, are 

anticipated to provide an additional 1 to 

2 parts per billion reduction benefit in 

the projected 2009 ozone design values 

beyond what was projected for ‘‘On The 

Books/On the Way’’ measures as 

detailed in the attainment modeling 

section of New York’s February 8, 2008 

8-hour ozone SIP submittal. 

4. What Is EPA’s Evaluation? 

The State is proceeding with 

developing several of the additional 

measures identified by the Ozone 

Transport Commission as part of its 

RACT and RACM control program. EPA 

has reviewed New York’s RACM 

analysis and while EPA agrees with 

New York that there are no RACM that 

can be adopted in time to advance the 

moderate area attainment date of 2010 

for the NYMA, EPA is proposing to 

disapprove New York’s RACM analysis 

because New York has not adopted all 

RACM identified and committed to by 

the State as reasonably available for 

assisting to reach attainment. EPA’s 

concerns with New York’s RACM 

analysis are the same as the concerns 

with New York’s RACT SIP discussed 

earlier. 

With respect to the adoption of 

control measures, EPA encourages New 

York to accelerate its rulemaking 

process and adopt the RACM that have 

been identified and committed to by 

New York in order to achieve RFP and 

attainment of the 8-hour ozone standard 

as expeditiously as practicable and 

provide for cleaner air for the public. 

V. What Are EPA’s Conclusions? 

EPA is proposing to disapprove the 

moderate area RACM analysis for the 

New York portion of the New York– 

Northern New Jersey–Long Island, NY– 

NJ–CT 8-hour ozone moderate 

nonattainment area as presented in the 

February 8, 2008, ‘‘New York SIP for 

Ozone—Attainment Demonstration for 

New York Metro Area.’’ 

EPA is also proposing to disapprove 

the September 1, 2006 New York RACT 

assessment SIP submittal, supplemented 

on February 8, 2008 and September 16, 

2008, as is applies to the entire State 

and to the New York portion of the New 

York-Northern New Jersey-Long Island, 

NY–NJ–CT and the Poughkeepsie 8- 

hour ozone moderate nonattainment 

areas. 

VI. What Are the Consequences if EPA 

Finalizes the Proposed Disapproval? 

If New York does not address the 

issues discussed in this proposed rule, 

and if EPA were to finalize this 

proposed disapproval, there could be 

the following consequences. The Act 

provides for the imposition of sanctions 

and the promulgation of a federal 

implementation plan (FIP) if states fail 

to correct any deficiencies identified by 

EPA in a final disapproval action within 

certain timeframes. 

A. What Are the Act’s Provisions for 

Sanctions? 

If EPA disapproves a required SIP 

submittal or component of a SIP 

submittal, section 179(a) provides for 

the imposition of sanctions unless the 

deficiency is corrected within 18 

months of the final rulemaking of 

disapproval. The first sanction would 

apply 18 months after EPA disapproves 

the SIP submittal if a state fails to make 

the required submittal that EPA 

proposes to fully or conditionally 

approve within that time. Under EPA’s 

sanctions regulations, 40 CFR 52.31, the 

first sanction would be 2:1 offsets for 

sources subject to the new source 

review requirements under section 173 

of the Act. If the state has still failed to 

submit a SIP for which EPA proposes 

full or conditional approval 6 months 

after the first sanction is imposed, the 

second sanction will apply. The second 

sanction is a limitation on the receipt of 

federal highway funds. EPA also has 

authority under section 110(m) to 

sanction a broader area. 

B. What Federal Implementation Plan 

Provisions Apply If a State Fails To 

Submit an Approvable Plan? 

In addition to sanctions, if EPA finds 

that a state failed to submit the required 

SIP revision or disapproves the required 


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Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Proposed Rules 42819 

SIP revision, or a portion thereof, EPA 

must promulgate a FIP no later than 2 

years from the date of the finding if the 

deficiency has not been corrected. 

VII. What Future Actions/Options Are 

Available for New York Regarding an 

Approvable 8-Hour Ozone SIP? 

As discussed in this proposed 

rulemaking action, EPA has proposed 

certain determinations on some SIP 

components included in New York’s 8- 

hour Ozone SIP submittals. EPA’s 

proposed determinations are based on 

EPA’s technical evaluation of the 

submittals and take into consideration 

the appropriate requirements pursuant 

to the Act, EPA rules and regulations, 

guidance and policy. EPA makes the 

following suggestions for correcting the 

identified deficiencies and 

strengthening New York’s SIP. 

Adoption of Control Measures 

New York included in its 8-hour 

ozone SIP submittals an enforceable 

commitment to adopt specific measures 

within a specified timeframe such that 

the emission reductions would be 

achieved in time to assist in reducing 

ozone precursors for RFP and to achieve 

attainment as expeditiously as 

practicable. In this rulemaking, EPA is 

proposing to disapprove New York’s 

RACT and RACM SIP submittal as they 

relate to a commitment to adopt and 

implement those additional measures. 

EPA encourages New York to accelerate 

its rulemaking process and adopt 

control measures prior to the 

commitment date of March 2010 for the 

RACT and RACM measures that have 

been identified and committed to by 

New York in order to achieve RFP and 

attainment of the 8-hour ozone standard 

as expeditiously as practicable, provide 

for cleaner air for the public and meet 

Clean Air Act requirements. 

VIII. What Is the Status of New York’s 

Reclassification Request? 

EPA is in the process of evaluating 

New York’s April 4, 2008 request to 

reclassify the New York–Northern New 

Jersey–Long Island, NY–NJ–CT 8-hour 

ozone nonattainment area from 

moderate to serious. Because this is a 

multi-state nonattainment area, EPA is 

evaluating its options in how best to 

proceed with addressing New York’s 

request. Recently, EPA proposed to 

disapprove the attainment 

demonstrations submitted by New 

Jersey and Connecticut (74 FR 21578 

and 74 FR 21568, respectively) for the 

remaining portions that make up the 

entire New York–Northern New Jersey– 

Long Island, NY–NJ–CT 8-hour ozone 

nonattainment area. 

While New York included in its 

February 8, 2008 8-hour ozone SIP 

submittal SIP elements consistent with 

a reclassification or serious 

classification schedule for achieving 

attainment (i.e., RFP plan for 2011, 2012 

and attainment demonstration for 2013), 

EPA is not acting on any of those 

elements that go beyond the Act 

requirements associated with a 

moderate area classification. EPA will 

address New York’s reclassification 

request and the other relevant SIP 

elements in one or more separate 

proposed actions in the near future. 

IX. 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 proposed 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 proposed 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Oxides of 

Nitrogen, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: August 14, 2009. 

Barbara A. Finazzo, 

Acting Regional Administrator, Region 2. 

[FR Doc. E9–20394 Filed 8–24–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2008–0697; FRL–8948–9] 

RIN 2060–AP08 

Revisions to Test Method for 

Determining Stack Gas Velocity Taking 

Into Account Velocity Decay Near the 

Stack Walls 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to revise the 

voluntary test method for determining 

stack gas velocity taking into account 

the velocity decay near the stack or duct 

walls. When the method was originally 

developed, it addressed only sources 

where the flow measurements were 

made in locations with circular crosssections. The proposed revised test 

method addresses flow measurement 

locations with both circular and 

rectangular cross-sections. The 

proposed revisions also include changes 

that increase the accuracy of the method 

and simplify its application. The 

primary users of the proposed method 

are likely to be owners and operators of 

utility units subject to the Acid Rain 


jlentini on DSKJ8SOYB1PROD with PROPOSALS