[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Proposed Rules]
[Pages 42813-42819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20394]


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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.

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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 York-Northern 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:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#9dcaf8eff3f8efb3cffce4f0f2f3f9ddf8edfcb3faf2eb"><span class="__cf_email__" data-cfemail="cd9aa8bfa3a8bfe39facb4a0a2a3a98da8bdace3aaa2bb">[email protected]</span></a>.
    <bullet> Fax: 212-637-3901.
    <bullet> Mail: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
    <bullet> 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

[[Page 42814]]

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 (<a href="/cdn-cgi/l/email-protection#483f212d2a2d3a6623213a23082d3829662f273e"><span class="__cf_email__" data-cfemail="2f58464a4d4a5d0144465d446f4a5f4e01484059">[email protected]</span></a>), 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.
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    \1\ Unless otherwise specifically noted in the action, 
references to the 8-hour ozone standard are to the 0.08 ppm ozone 
standard promulgated in 1997.
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    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 York-Northern 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 pre-existing 
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

[[Page 42815]]

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 York-Northern 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 York-Northern 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

[[Page 42816]]

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 NO<INF>X</INF> 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:
    <bullet> Identify all source categories covered by Control 
Technique Guidelines (CTG) and Alternative Control Technique (ACT) 
documents.
    <bullet> Identify applicable regulations that implement RACT.
    <bullet> Certify that the existing level of controls for the 1-hour 
ozone standard equals RACT under the 8-hour ozone standard in certain 
cases.
    <bullet> 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.
    <bullet> Identify and evaluate applicability of RACT to individual 
sources not covered by state-wide regulation.
    <bullet> 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 re-
evaluation by using EPA's guidance and comparing control measures to 
those currently enacted by other 1-hour ozone nonattainment areas.\3\
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    \2\ Information available at EPA's technology transfer network: 
http://cfpubl.epa.gov/rblclhtm/bl02.cfm.
    \3\ Serious and Severe Ozone Nonattainment areas: Information on 
emissions, control measures adopted or planned and other available 
control measures. EPA, November 1999.
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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
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          NY regulation                         Title                             EPA approval date
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Part 205........................  Architectural and Industrial      12/13/04, 69 FR 72118.
                                   Maintenance Coatings.
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      1/13/05, 70 FR 2358.
                                   Technology (RACT) for Oxides of
                                   Nitrogen (NOX).
Part 228........................  Surface Coating Processes.......  1/23/04, 69 FR 3240.
Part 229........................  Petroleum and Volatile Organic    12/23/97, 62 FR 67006.
                                   Liquid Storage and Transfer.
Part 230........................  Gasoline Dispensing Sites and     4/30/98, 63 FR 23668.
                                   Transport Vehicles.
Part 232........................  Dry Cleaning....................  6/17/85, 50 FR 25079.
Part 233........................  Pharmaceutical and Cosmetic       12/23/97, 62 FR 67006.
                                   Processes.
Part 234........................  Graphic Arts....................  12/23/97, 62 FR 67006.
Part 236........................  Synthetic Organic Chemical        7/27/93, 58 FR 40059
                                   Manufacturing Facility
                                   Component Leaks.
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    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 High-Density 
Polyethylene, Polypropylene, and Polystyrene Resins. New York has 
reviewed its emission inventory and

[[Page 42817]]

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 source-specific 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 
NO<INF>X</INF> 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 source-specific 
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:
    <bullet> 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;
    <bullet> 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);
    <bullet> 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

[[Page 42818]]

non-road emission source categories that meets the following criteria:
    <bullet> The control measure is technologically feasible
    <bullet> The control measure is economically feasible
    <bullet> The control measure does not cause ``substantial 
widespread and long-term adverse impacts''
    <bullet> The control measure is not ``absurd, unenforceable, or 
impracticable''
    <bullet> 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, 
cost-effectiveness (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

[[Page 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:
    <bullet> 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);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> 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
    <bullet> 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


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