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###### Environmental Protection Agency

          - 40 CFR Part 52
          - [EPA-R02-OAR-2009-0462, FRL-9144-6]

# AGENCY:

Environmental Protection Agency (EPA).

# ACTION:

Proposed rule.

# SUMMARY:

On August 25, 2009, the EPA proposed to disapprove portions of a proposed revision to the New York State Implementation Plan, submitted on February 8, 2008, that was intended to meet specific Clean Air Act requirements for attaining the 0.08 parts per million 8-hour ozone national ambient air quality standards. Specifically, EPA proposed to disapprove New York's reasonably available control measure analysis and New York's efforts to meet the reasonably available control technology requirements. Subsequent to that action, New York passed two additional rules and submitted them for review and inclusion in the State Implementation Plan and made additional commitments to meet the remaining reasonably available control technology and reasonably available control measure requirements. Therefore, in this action EPA is proposing a conditional approval of the reasonably available control technology requirement which applies 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 a conditional approval of the reasonably available control measure analysis which applies 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 June 3, 2010.

# 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 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://      ( print page 23641)    www.regulations.gov*                         or in hard copy at the Environmental Protection Agency, Region 2 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. What was included in New York's SIP submittals?

III. What is the rationale for this proposed rulemaking action?

IV. What are EPA's conclusions?

V. What are the consequences if a final conditional approval is converted to a disapproval?

VI. Statutory and Executive Order Reviews

## I. What action is EPA proposing?

                    The Environmental Protection Agency (EPA) has reviewed elements of New York's comprehensive proposed 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. On August 25, 2009 (74 FR 42813), EPA proposed to disapprove New York's reasonably available control measure (RACM) analysis and New York's efforts to meet the reasonably available control technology (RACT) requirement. The reader is referred to that rulemaking action and its accompanying technical support document for a more detailed discussion of New York's RACT and RACM plans. New York submitted a letter committing to adopt the necessary control measures that will satisfy the RACT and RACM requirement by August 31, 2010, which is no more than one year from our anticipated final action on the SIP submittals. Therefore, in this action, EPA is proposing a conditional approval of New York's RACT and RACM plans.                

## II. 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. 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, Reasonable Further Progress (RFP) plans, RACT analysis, RACM analysis, contingency measures, new source review and on-road motor vehicle emission budgets. These proposed SIP revisions were subject to notice and comment by the public and the State addressed the comments received on the proposed SIP revisions before adopting the plans and submitting them for EPA review and rulemaking action.

Included in New York's February 8, 2008 8-hour Ozone SIP submittal was a list of additional control measures identified by the State as RACT and RACM. The State committed to adopt additional control measures applicable to the following source categories: Adhesives and Sealants, Consumer Products, Portable Fuel Containers, Graphic Arts, Asphalt Formulation, Asphalt Paving Production, Portland Cement Plants, Glass Manufacturing, and NOx RACT.

Of the source categories identified by New York, on July 15, 2009 and September 30, 2009, the State adopted rules for Portable Fuel Containers and Consumer Products, respectively. New York submitted the Consumer Products rule (on October 21, 2009) and the Portable Fuel Container rule (on November 23, 2009) to EPA, for review and approval into the SIP. On March 2, 2010 (75 FR 9373), EPA proposed to approve New York's Consumer Products and Portable Fuel Container rules and will take final action in the near future.

On December 28, 2009, New York provided supplemental information intended to clarify the RFP and 2002 base year emissions inventory, projection year emissions and conformity budgets that were included in the February 8, 2008 ozone SIP submittals. EPA is reviewing this information and will make a decision in the near future as to whether these submissions satisfy the requirements of the Act.

## III. What is the rationale for this proposed rulemaking action?

On August 25, 2009 (74 FR 42813), EPA proposed to disapprove New York's RACT and RACM plans. In that proposed rulemaking action, EPA made suggestions for how New York could correct the identified deficiencies and strengthen the 8-hour ozone SIP (see 74 FR 42819). As discussed in Section II, New York adopted and submitted for inclusion in the SIP two of the control measures it had adopted. On December 23, 2009, New York proposed adoption of all but one of the remaining additional control measures that it committed to adopt as satisfying the RACT and RACM requirement. Based on this recent progress and on New York's commitment to submit adopted RACT/RACM rules by August 31, 2010, EPA is proposing a conditional approval of the RACT and RACM SIPs for the 8-hour ozone NAAQS. EPA has determined that New York will be able to meet this commitment because the State has already adopted rules for two of the source categories and recently proposed, and concluded public comment on, RACT/RACM provisions for all but one of the remaining source categories.

## IV. What are EPA's conclusions?

EPA is proposing a conditional approval of 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” SIP submittal.

EPA is also proposing a conditional approval of the September 1, 2006 New York RACT assessment SIP submittal, supplemented on February 8, 2008 and September 16, 2008, which 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.

                    EPA is proposing a conditional approval of the RACT and RACM analyses for the 8-hour ozone NAAQS based on New York's letter committing                           ( print page 23642)                        to submit adopted RACT/RACM rules for several source categories by August 31, 2010. EPA has determined that New York will be able to meet this commitment because the State has already adopted rules for two of the source categories and recently proposed, and concluded public comment on, RACT/RACM provisions for all but one of the remaining source categories.                

                    Under section 110(k)(4) of the Act, EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than 1 year from the date of approval. If EPA conditionally approves the commitment in a final rulemaking action, the State must meet its commitment to adopt the identified regulations. If the State fails to do so, this action will become a disapproval upon the State's failure to meet its commitment. EPA will notify the State by letter that this action has occurred. If the conditional approval converts to a disapproval, the commitment will no longer be a part of the approved New York SIP. Upon notification to the State that the conditional approval has converted to a disapproval, EPA will publish a notice in the                     **Federal Register**                     notifying the public that the conditional approval automatically converted to a disapproval. If EPA disapproves the RACT and RACM SIP submittals, such action will start a sanctions and FIP clock (see section V). If the State meets its commitment, within the applicable time frame, the conditionally approved submission will remain a part of the SIP until EPA takes final action approving or disapproving the RACT and RACM submittals. If EPA approves the submittals, the RACT and RACM analyses will be fully approved into the SIP in their entirety.                

## V. What are the consequences if a final conditional approval is converted to a disapproval?

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 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.

## VI. Statutory and Executive Order Reviews

Under the 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 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 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: April 23, 2010.

Judith A. Enck,

Regional Administrator, Region 2.

# Footnotes

1.                             Unless otherwise specifically noted in this action, references to the 8-hour ozone standard are to the 0.08 ppm ozone standard promulgated in 1997.                    
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[FR Doc. 2010-10416 Filed 5-3-10; 8:45 am]

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