Approval and Promulgation of Implementation Plans; New York: Clean Air Interstate Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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), nitrogen oxides (NO_X) annual, and NO_X 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 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 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 (PM_2.5) 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 NO_X Ozone Season Trading Program; Part 244 establishes the CAIR NO_X 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, NO_X annual, and NO_X 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 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 NO_X 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, NO_X annual, and NO_X 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 NO_X annual and NO_X 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, NO_X annual, and NO_X ozone season emissions. The SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO_X annual and NO_X 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, NO_X annual, and NO_X 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 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

40 CFR part 52 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)(113) to read as follows:

3. In § 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: