[Federal Register: January 24, 2008 (Volume 73, Number 16)]
[Rules and Regulations]
[Page 4109-4113]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja08-22]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2007-0913; FRL-8514-9]
Approval and Promulgation of Implementation Plans; New York:
Clean Air Interstate Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve a revision to the New
York State Implementation Plan (SIP) that addresses the requirements of
EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005 and
subsequently revised on April 28, 2006, and December 13, 2006. EPA has
determined that the SIP revision fully implements the CAIR requirements
for New York. As a result of this rulemaking, EPA will also withdraw,
through a separate rulemaking, the CAIR Federal Implementation Plans
(CAIR FIPs) concerning sulfur dioxide (SO2),
[[Page 4110]]
nitrogen oxides (NOX) annual, and NOX ozone
season emissions for New York. The CAIR FIPs for all states in the CAIR
region were promulgated on April 28, 2006 and subsequently revised on
December 13, 2006. In addition, EPA is determining that the New York
SIP revision satisfies New York's obligation under section
110(a)(2)(D)(i) of the Clean Air Act (CAA) to prohibit air emissions
that would interfere with provisions to prevent significant
deterioration of air quality.
DATES: This rule is effective on January 24, 2008.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R02-OAR-2007-0913. All documents in the docket are available
online at http://www.regulations.gov. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the Air
Programs Branch, Environmental Protection Agency, Region 2 Office, 290
Broadway, 25th Floor, New York, New York 10007-1866.
FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Fradkin, Environmental
Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York,
New York 10007-1866, phone number (212) 637-3702 or by e-mail at:
fradkin.kenneth@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. EPA's Action
A. What action is EPA approving?
B. When did EPA propose to approve New York's SIP revision?
C. What are the public comments on EPA's proposal?
D. Where is additional information available on EPA's action?
II. Conclusion
III. When Is This Action Effective?
IV. Statutory and Executive Order Reviews
I. EPA's Action
A. What action is EPA approving?
EPA is taking final action to approve a revision to New York's SIP
which was approved for adoption by New York's State Environmental Board
on August 28, 2007 and submitted as a SIP revision on September 17,
2007. New York's revision addresses the Clean Air Interstate Rule
(CAIR) and obligations under 110(a)(2)(D)(i) for the 8-hour ozone and
fine particle (PM2.5) National Ambient Air Quality Standards
(NAAQS). New York's adoption was published in the New York Register on
October 10, 2007 (Volume XXIX, Issue 41).
EPA has determined that the SIP, as revised, will meet the
applicable requirements of CAIR. Parts 243, 244 and 245 of title 6 of
the New York Code of Rules and Regulations (6NYCRR) constitute New York
State's CAIR program. Part 243 establishes the CAIR NOX
Ozone Season Trading Program; Part 244 establishes the CAIR
NOX Annual Trading Program; and Part 245 establishes the
CAIR SO2 Trading Program.
As a result of this action, the Administrator of EPA will also
issue a final rule to withdraw the FIPs concerning SO2,
NOX annual, and NOX ozone season emissions for
New York. The Administrator's action will delete and reserve 40 CFR
52.1684 and 40 CFR 52.1685, relating to the CAIR FIP obligations for
New York. The withdrawal of the CAIR FIPs for New York is a conforming
amendment that must be made once the SIP is approved because EPA's
authority to issue the FIPs was premised on a deficiency in the SIP for
New York. Once the SIP is fully approved, EPA no longer has authority
for the FIPs. Thus, EPA will not have the option of maintaining the
FIPs following the full SIP approval. Accordingly, EPA does not intend
to offer an opportunity for a public hearing or an additional
opportunity for written public comment on the withdrawal of the FIPs.
In addition, as EPA determined in the final CAIR, EPA's conclusion
that the revised SIP meets the applicable requirements of CAIR is also
sufficient to demonstrate that the New York SIP satisfies the
requirements in section 110(a)(2)(D)(i) of the Clean Air Act (CAA) with
regard to ``significant contribution'' and ``interference with
maintenance''. Section 110(a)(2)(D)(i) requires, among other things,
that each state submit a SIP that prohibits any source or any other
type of emission activity within a state from emitting pollutants in
amounts that will: (1) contribute significantly to downwind
nonattainment of the NAAQS and (2) interfere with maintenance of the
NAAQS. Because EPA previously determined in the CAIR that states will
meet these two obligations by complying with the applicable CAIR
requirements, EPA is not taking any final action in this notice with
regard to the ``significant contribution'' and ``interference with
maintenance'' obligations in section 110(a)(2)(D)(i).
Section 110(a)(2)(D)(i) also contains requirements related to
emissions that interfere with the prevention of significant
deterioration of air quality (PSD) and visibility protection, and CAIR
did not address states' obligations with respect to these two
requirements. In today's action, EPA is taking final action to
determine that the New York SIP satisfies the CAA 110(a)(2)(D)(i)
requirement that each state is to submit a SIP that prohibits any
source or any other type of emission activity within a state from
emitting pollutants in amounts that will interfere with provisions to
prevent significant deterioration of air quality. EPA is taking no
action to determine whether the New York SIP satisfies the visibility
protection requirements in 110(a)(2)(D)(i) of the CAA because it is not
possible at this time for New York to accurately determine whether
there is interference with measures in another state's SIP to protect
visibility. New York will need to address the visibility protection
requirements once the regional haze SIP is completed and submitted to
EPA.
B. When did EPA propose to approve New York's SIP revision?
EPA proposed to approve New York's request to amend the SIP on
October 1, 2007 (72 FR 55723). The comment period closed on October 31,
2007. One comment was received and is addressed in Section I.C. below.
C. What are the public comments on EPA's proposal?
The following is a summary of the comments received on the proposed
rule published on October 1, 2007 (72 FR 55723), and EPA's response.
Comment: On October 30, 2007, the Connecticut Department of
Environmental Protection (CTDEP) submitted adverse comments on EPA's
proposed rule to approve New York's CAIR SIP. CTDEP indicates that the
State is encouraged by the efforts of New York and other states to
adopt programs to meet the emission reduction requirements of CAIR, and
urges EPA approval. However, it argues that before approving state
plans with respect to CAA 110(a)(2)(D), EPA should evaluate
individually and in the aggregate each state's clean air programs. They
argue such evaluation is necessary to ensure that each state's
emissions do not significantly contribute to ozone nonattainment in
Connecticut or any other state. CTDEP expresses concern that EPA is
determining through this and other
[[Page 4111]]
similar rulemakings that CAIR programs are sufficient to meet states'
section 110(a)(2)(D)(i) obligations. CTDEP asserts, based on EPA and
State modeling for CAIR, that the levels of transported pollution
remaining after CAIR implementation are large enough that, even with
local controls, it may be difficult for Connecticut to attain the 8-
hour ozone NAAQS by 2010. Finally, CTDEP questions EPA's determination
that highly cost effective controls are adequate to address states'
section 110(a)(2)(D)(i) obligations as compared to ``reasonable cost''
controls that could be achieved to effect more stringent NOX
reductions.
Response: EPA does not agree that it is appropriate or necessary
for EPA to conduct additional analysis before approving the New York
CAIR SIP revision. Under this SIP revision, New York has chosen to
participate in the EPA administered cap-and-trade program for
SO2, NOX annual, and NOX ozone season
emissions. EPA has evaluated this SIP revision and has determined that
it complies with the applicable requirements in 40 CFR 51.123(o) and
(aa), with regard to NOX annual and NOX ozone
season emissions, and 40 CFR 51.124(o), with regard to SO2
emissions. CTDEP does not challenge this determination. Thus, CTDEP's
comments do not specifically pertain to any aspect of EPA's proposed
action to approve New York's CAIR SIP revision. Rather, the comments
appear to be directed broadly at EPA's decisions with regard to states'
section 110(a)(2)(D)(i) obligations. These decisions were made by EPA
in the context of the CAIR rulemaking, which was promulgated on May 12,
2005 (70 FR 25162), not in the proposed action to approve New York's
CAIR SIP revision. Therefore, CTDEP's comments are not relevant to the
proposed action. CTDEP had ample opportunity to submit comments both
during the comment period for the proposed CAIR rulemaking of January
30, 2004 (69 FR 4566) and during the comment period for the proposed
CAIR FIP of August 24, 2005 (70 FR 49708). EPA's proposal to approve
New York's CAIR SIP did not reopen either the CAIR or CAIR FIP
rulemakings. Consequently, CTDEP's comments are not relevant to this
rulemaking, or timely with respect to the CAIR and CAIR FIP
rulemakings. Thus, EPA does not believe it is necessary to conduct
additional analysis on whether New York or any other state satisfies
the requirements of 110(a)(2)(D) before approving the New York CAIR SIP
submission.
D. Where is additional information available on EPA's action?
A detailed analysis of New York's SIP submittal pertaining to New
York's CAIR program and the requirements of section 110(a)(2)(D)(i) of
the CAA is available in the October 1, 2007 Proposed Rulemaking (72 FR
55723). A copy of the rulemaking is available in the EPA docket.
II. Conclusion
EPA is taking final action to approve New York's full CAIR SIP
revision submitted on September 17, 2007. Under this SIP revision, New
York is choosing to participate in the EPA administered cap-and-trade
program for SO2, NOX annual, and NOX
ozone season emissions. The SIP revision meets the applicable
requirements in 40 CFR 51.123(o) and (aa), with regard to
NOX annual and NOX ozone season emissions, and 40
CFR 51.124(o), with regard to SO2 emissions. The revision
includes three emission cap-and-trade rules, 6 NYCRR Parts 243, 244,
and 245, effective on October 19, 2007, which implement the State's
CAIR Cap-and-Trade Programs in New York. EPA has determined that the
SIP, as revised, will meet the requirements of CAIR. The Administrator
of EPA has also issued a direct final rule to automatically withdraw
the CAIR FIPs concerning SO2, NOX annual, and
NOX ozone season emissions for New York State upon the
effective date of EPA's approval of a full state SIP revision that
meets the requirements of CAIR. This action will delete and reserve 40
CFR 52.1684 and 40 CFR 52.1685.
In addition, EPA is also taking final action to determine that the
New York SIP satisfies the requirement in section 110(a)(2)(D)(i) of
the Clean Air Act (CAA) that requires each state to submit a SIP that
prohibits any source or any other type of emission activity within a
state from emitting pollutants in amounts that will interfere with
provisions to prevent significant deterioration of air quality. EPA is
not taking action to determine whether the New York SIP satisfies the
110(a)(2)(D)(i) requirement regarding visibility protection. This
requirement will be re-evaluated after regional haze SIPs are completed
and approved by EPA.
III. When Is This Action Effective?
EPA finds that there is good cause for this approval to become
effective on January 24, 2008, because a delayed effective date is
unnecessary due to the nature of the approval, which allows the State
to implement the State's CAIR Cap-and-Trade Programs in New York. The
expedited effective date for this action is authorized under both 5
U.S.C. 553(d)(1), which provides that rule actions may become effective
less than 30 days after publication if the rule ''grants or recognizes
an exemption or relieves a restriction'' and section 5 U.S.C.
553(d)(3), which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.'' CAIR SIP approvals relieve states and
CAIR sources within states from being subject to allowance allocation
provisions in the CAIR FIPs that otherwise would apply to them,
allowing States to make their own allowance allocations based on their
SIP-approved State rule. The relief from these obligations is
sufficient reason to allow an expedited effective date of this rule
under 5 U.S.C. 553(d)(1). In addition, New York's relief from these
obligations provides good cause to make this rule effective on January
24, 2008, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day
waiting period prescribed in 5 U.S.C. 553(d) is to give affected
parties a reasonable time to adjust their behavior and prepare before
the final rule takes effect. Where, as here, the final rule relieves
obligations rather than imposes obligations, affected parties, such as
the State of New York and CAIR sources within the State, do not need
time to adjust and prepare before the rule takes effect.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and would
impose no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule would not have
a significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this action approves pre-existing requirements under state law and
would not impose any additional enforceable duty beyond that required
by state law, it does not contain any unfunded mandate or significantly
or uniquely affect small governments, as described
[[Page 4112]]
in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it would
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it would not have substantial direct effects on
the states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard and will result, as a consequence of
that approval, in the Administrator's withdrawal of the CAIR FIP. It
does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), because it would approve a state rule implementing a Federal
Standard.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule would not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 24, 2008. 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, Electric
utilities, Incorporation by reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur dioxide.
Dated: December 31, 2007.
Alan J. Steinberg,
Regional Administrator, Region 2.
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40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart HH--New York
0
2. Section 52.1670 is amended by adding new paragraph (c)(113) to read
as follows:
Sec. 52.1670 Identification of plans.
* * * * *
(c) * * *
(113) A revision to the State Implementation Plan that was
submitted on September 17, 2007 by the New York State Department of
Environmental Conservation (NYSDEC). This revision consists of
regulations to meet the requirements of the Clean Air Interstate Rule
(CAIR). This revision also addresses New York's 110(a)(2)(D)(i)
obligations to submit a SIP revision that contains adequate provisions
to prohibit air emissions from adversely affecting another state's air
quality through interstate transport.
(i) Incorporation by reference:
(A) Part 243, CAIR NOX Ozone Season Trading Program,
Part 244, CAIR NOX Annual Trading Program, and Part 245,
CAIR SO2 Trading Program, effective on October 19, 2007, of
Title 6 of the New York Code of Rules and Regulations (NYCRR).
(B) Notice of Adoption, New York State Clean Air Interstate Rule,
addition of Parts 243, 244 and 245 to Title 6 NYCRR, New York State
Register, dated October 10, 2007, pages 16-22.
(ii) Additional information:
(A) Letter dated September 14, 2007 from Assistant Commissioner J.
Jared Snyder, NYSDEC, to Alan J. Steinberg, RA, EPA Region II,
submitting the SIP revision.
0
3. In Sec. 52.1679, the table is amended by adding under Title 6
entries for Parts 243, 244, and 245 in numerical order to read as
follows:
Sec. 52.1679 EPA--approved New York State regulations.
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State
State regulation effective date EPA approved date Comments
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Title 6
* * * * * * *
Part 243, CAIR NOX Ozone 10/19/07 1/24/08, [Insert FR page
Season Trading Program. citation].
Part 244, CAIR NOX Annual 10/19/07 1/24/08, [insert FR page
Trading Program. citation].
Part 245, CAIR SO2 Trading 10/19/07 1/24/08, [insert FR page
Program. citation].
* * * * * * *
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[FR Doc. E8-802 Filed 1-23-08; 8:45 am]
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