[Federal Register Volume 62, Number 246 (Tuesday, December 23, 1997)]
[Rules and Regulations]
[Pages 67004-67006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33317]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY10-2-174; FRL-5934-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is approving a revision to 
the New York State Implementation Plan (SIP) related to the control of 
volatile organic compounds. The SIP revision consists of amendments to 
Part 200, ``General Provisions,'' Part 201, ``Permits and 
Certificates,'' Part 228, ``Surface Coating Processes,'' Part 229, 
``Petroleum and Volatile Organic Liquid Storage,'' Part 233, 
``Pharmaceutical and Cosmetic Manufacturing Processes,'' and Part 234, 
``Graphic Arts.'' The amendments extend reasonably available control 
technology rules to enlarged nonattainment areas and to all of New York 
State which is part of the Northeast Ozone Transport Region as required 
by the Clean Air Act. In addition, the amendments to Part 228 correct 
deficiencies in New York's existing SIP, as required by the Clean Air 
Act.

EFFECTIVE DATE: This rule is effective January 22, 1998.

ADDRESSES: Copies of the State submittal are available at the following 
addresses for inspection during normal business hours:
    Environmental Protection Agency, Region II Office, Air Programs 
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    New York State Department of Environmental Conservation, Division 
of Air Resources, 50 Wolf Road, Albany, New York 12233.
    Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, S.W., Washington, 
D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Paul R. Truchan, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10278, (212) 637-4249.

SUPPLEMENTARY INFORMATION: On May 24, 1995, the Environmental 
Protection Agency (EPA) published in the Federal Register (60 FR 
27464) a Notice of Proposed Rulemaking (NPR) concerning a revision 
to the New York State Implementation Plan (SIP) for ozone. The 
State requested the SIP be revised to incorporate revised 
regulations contained in Title 6 of the New York Code of Rules and 
Regulations (NYCRR) Part 200, ``General Provisions,'' Part 201 
``Permits and Certificates,'' Part 228, ``Surface Coating 
Processes,'' Part 229 ``Petroleum and Volatile Organic Liquid 
Storage and Transfer,'' Part 233, ``Pharmaceutical and Cosmetic 
Manufacturing Processes,'' and Part 234, ``Graphic Arts.'' These 
regulations were adopted on February 26, 1993, and became effective 
on April 4, 1993.

Final Action

    The revisions and the rationale for EPA's action were explained in 
EPA's May 24, 1995 NPR and will not be restated here since EPA's final 
action does not differ from that proposed in the NPR. No comments were 
received on EPA's proposed action. EPA is approving Parts 200, 201, 
228, 229, 233 and 234 because they are consistent with EPA policy and 
guidance and also meet the requirements of sections 110, 182(a)(2)(A), 
182(b)(2) and 184(b) of the Clean Air Act.
    It should be noted that sections 228.3(e), 229.3(g) and (h), 
233.3(h), and 234.3(f) permit the Commissioner of the New York State 
Department of Environmental Conservation (NYSDEC) to accept a lesser 
degree of control (alternative requirements) upon submission of 
satisfactory technical and/or economic evidence that the source has 
applied reasonably available control technology. These provisions also 
require that any lesser degree of control must be submitted to the EPA 
as a revision to the SIP. EPA views these provisions as giving the 
Commissioner the authority to permit alternative requirements once they 
have been submitted and approved by EPA as SIP revisions. EPA will not 
recognize any variance or alternate requirement as being federally 
enforceable until it is submitted to EPA by the State and is approved 
by EPA as a source specific SIP revision.
    Sections 229.4(a)(4), 233.4(b)(4) and 234.4(b)(1)(iv) permits the 
Commissioner and EPA to accept

[[Page 67005]]

alternative analytical methods for determining compliance with emission 
limits, contained in these Parts, when approved test methods are not 
applicable. These provisions require that any alternate test method 
must be approved in advance by the NYSDEC and EPA before they can be 
used.
    Section 228.5(c) permits the Commissioner to accept alternative 
analytical methods for determining compliance with emission limits, 
contained in part 228, when approved test methods are not applicable. 
In such a case, EPA reserves its right to demonstrate the applicability 
of Test Method 24 (40 CFR part 60, appendix A).
    It should be noted that Part 201 contains the requirements for the 
State's permit to construct and certificate to operate program. These 
provisions are not intended to meet the Title V Permits Program 
required by the Clean Air Act. New York has made a subsequent submittal 
to EPA which addresses the Title V Permits Program. Also, Part 201 
contains a previously adopted odor provision which EPA will act on in a 
separate rulemaking.

SIP Deficiencies

    The revisions to Parts 200 and 228 addressed several deficiencies 
which EPA identified in a May 26, 1988 letter to former Governor Cuomo 
and a January 30, 1991 letter to the NYSDEC Commissioner which found 
the SIP substantially inadequate to attain the ozone and carbon 
monoxide standards. With EPA's approval of these regulations, EPA is 
making a finding that New York has now corrected all but one deficiency 
which involves the test methods for determining capture efficiency for 
VOC emission control systems.
    EPA originally provided guidance on such test methods, but states 
and industry inquired whether less costly and less time consuming 
alternatives were possible. EPA began a study of capture efficiency 
test methods and issued a moratorium on the need to correct any 
deficient regulations until the study was complete. On February 7, 
1995, EPA announced the completion of this study, ``Guidelines For 
Determining Capture Efficiency,'' and required any states with this 
deficiency to correct their VOC regulations. On March 20, 1995, EPA 
notified New York that such corrections were now required. Because the 
regulations which are the subject of this Federal Register notice were 
proposed and adopted prior to March 20, 1995, EPA is approving the 
regulations which are the subject of this rulemaking. However, 
submission and approval of the capture efficiency test methods is still 
necessary for full approval of New York's SIP. New York is in the 
process of developing the necessary revisions to address capture 
efficiency test methods. The next time the State submits a SIP revision 
containing these regulations, EPA will require that they contain these 
test methods.
    As of February 27, 1995, EPA's moratorium on the use of such 
methods ended and the methods in the February 27, 1995 guidance 
document are considered by EPA to be accurate and credible. Should a 
situation arise which involves capture efficiency, EPA will require 
confirmation of capture efficiency values using the appropriate test 
method.

Conclusion

    EPA is approving Parts 200, 201, 228, 229, 233 and 234 as part of 
the SIP. Sections 228.3(e)(1), 229.3(g)(1), 233.3(h)(1), and 
234.3(f)(1) allow for alternative requirements provided they are 
submitted to the EPA for approval as a source specific SIP revision. 
EPA will not recognize any variance or alternate requirement as being 
federally enforceable until it is submitted to EPA by the State and is 
approved by EPA as a source specific SIP revision. Alternate analytical 
methods for determining compliance with surface coating emission limits 
pursuant to Section 228.5(c) are approved based on NYSDEC's agreement 
that, for purposes of being federally enforceable, New York will submit 
these alternate test methods to EPA for approval.
    Nothing in this rule should be construed as permitting or allowing 
or establishing a precedent for any future request for revision to any 
SIP. Each request for revision to any SIP shall be considered 
separately in light of specific technical, economic, and environmental 
factors and in relation to relevant statutory and regulatory 
requirements.

Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because the 
federal SIP approval does not impose any new requirements, I certify 
that it does not have a significant impact on any small entities 
affected. Moreover, due to the nature of the Federal-State relationship 
under the CAA, preparation of a flexibility analysis would constitute 
federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller

[[Page 67006]]

General of the General Accounting Office prior to publication of the 
rule in today's Federal Register. This rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 23, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: November 26, 1997.
Jeanne M. Fox,
Regional Administrator, Region II.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart HH--New York

    2. Section 52.1670 is amended by adding new paragraph (c)(93) to 
read as follows:


Sec. 52.1670  Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (93) Revisions to the New York State Implementation Plan (SIP) for 
ozone concerning the control of volatile organic compounds from 
petroleum and volatile organic compound storage and transfer, surface 
coating and graphic arts sources, dated March 8, 1993 submitted by the 
New York State Department of Environmental Conservation (NYSDEC).
    (i) Incorporation by reference:
    (A) Amendments to Title 6 of the New York Code of Rules and 
Regulations (NYCRR) Part 200 ``General Provisions,'' Part 201 ``Permits 
and Certificates,'' Part 228 ``Surface Coating Processes,'' and Part 
229 ``Petroleum and Volatile Organic Liquid Storage and Transfer,'' 
Part 233 ``Pharmaceutical and Cosmetic Manufacturing Processes,'' and 
Part 234 ``Graphic Arts,'' effective April 4, 1993.
    3. Section 52.1679 is amended by revising the six entries for Parts 
200, 201, 228, 229, 233 and 234 to the table in numerical order to read 
as follows:


Sec. 52.1679  EPA--approved New York State regulations.

                                                                                                                
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                                         State                                                                  
      New York State regulation        effective     Latest EPA approval                  Comments              
                                          date              date                                                
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Part 200, General Provisions........       4/4/93  December 23, 1997, FR   Redesignation of nonattainment areas 
                                                    67006.                  to attainment areas (200.1(mm)) does
                                                                            not relieve a source from compliance
                                                                            with previously applicable          
                                                                            requirements as per letter of Nov.  
                                                                            13, 1981 from H. Hovey, NYSDEC.     
Part 201, Permits and Certificates..       4/4/93  December 23, 1997, FR   .....................................
                                                    67006.                                                      
                  *                  *                  *                  *                  *                 
Part 228, Surface Coating Processes:                                                                            
    228.1-228.10....................       4/4/93  December 23, 1997, FR   SIP revisions submitted in accordance
                                                    67006.                  with Section 228.3(e)(1) are        
                                                                            effective only if approved by EPA.  
Part 229, Petroleum and Volatile           4/4/93  December 23, 1997, FR   SIP revisions submitted in accordance
 Organic Liquid Storage and Transfer.               67006.                  with Section 229.3(g)(1) are        
                                                                            effective only if approved by EPA.  
                  *                  *                  *                  *                  *                 
Part 233, Pharmaceutical and               4/4/93  December 23, 1997, FR   SIP revisions submitted in accordance
 Cosmetic Processes.                                67006.                  with Section 223.3(h)(1) are        
                                                                            effective only if approved by EPA.  
Part 234, Graphic Arts..............       4/4/93  December 23, 1997, FR   SIP revisions submitted in accordance
                                                    67006.                  with Section 234.3(f)(1) are        
                                                                            effective only if approved by EPA.  
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[FR Doc. 97-33317 Filed 12-22-97; 8:45 am]
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