[Federal Register Volume 63, Number 228 (Friday, November 27, 1998)]
[Rules and Regulations]
[Pages 65557-65559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31542]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region II Docket No. NY29-1-187a; FRL-6193-5]
Approval and Promulgation of Implementation Plans; New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is promulgating a
correction to the State Implementation Plan (SIP) for the State of New
York regarding the State's general prohibition on air pollution. EPA
has determined that this rule was erroneously incorporated into the
SIP. EPA is removing this rule from the approved New York SIP because
the rule does not have a reasonable connection to the national ambient
air quality standards (NAAQS) and related air quality goals of the
Clean Air Act. The intended effect of this correction to the SIP is to
make the SIP consistent with the requirements of the Clean Air Act, as
amended in 1990 (``the Act''), regarding EPA action on SIP submittals
and SIPs for national primary and secondary ambient air quality
standards.
EFFECTIVE DATE: This direct final rule is effective on January 26, 1999
without further notice, unless EPA receives adverse comment by December
28, 1998. If adverse comment is received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: All comments should be addressed to: Ronald Borsellino,
Chief, Air Programs Branch, Environmental Protection Agency, Region II
Office, 290 Broadway, New York, New York 10007-1866.
Copies of the documents relevant to this action are available for
inspection during normal business hours at the following address:
Environmental Protection Agency, Region II Office, Air Programs
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
FOR FURTHER INFORMATION CONTACT: Henry Feingersh, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th floor, New York,
New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
I. Correction to SIP
EPA has determined that Part 211.2 of Title 6 of the New York Code
of Rules and Regulations (NYCRR), which was approved in 1984 as part of
the SIP, does not have a reasonable connection to the NAAQS and related
air quality goals of the Clean Air Act and is not properly part of the
SIP.
Part 211.2 is a general prohibition against air pollution. Such a
general provision is not designed to control NAAQS pollutants such that
EPA could rely on it as a NAAQS attainment and maintenance strategy.
After it came to the attention of EPA that Part 211.2 was not properly
part of the SIP, EPA in turn brought the matter to the attention of the
New York State Department of Environmental Conservation (NYSDEC).
NYSDEC shared EPA's understanding that Part 211.2 was improperly
approved into the SIP.
EPA, pursuant to section 110(k)(6) of the Act, is correcting the
SIP since Part 211.2 is not reasonably related to the NAAQS-related air
quality goals of the Act. Section 110(k)(6) of the amended Act
provides: ``Whenever the Administrator determines that the
Administrator's action approving, disapproving, or promulgating any
plan or plan revision (or part thereof), area designation,
redesignation, classification or reclassification was in error, the
Administrator may in the same manner as the approval, disapproval, or
promulgation revise any such action as appropriate without requiring
any further submission from the State. Such determination and the basis
thereof shall be provided to the State and the public.'' It should be
noted that section 110(k)(6) has also been used by EPA to delete an
improperly approved odor provision from the Wyoming SIP. 61 FR 47058
(1996).
Since the State of New York's Part 211.2 has no reasonable
connection to the NAAQS-related air quality goals of the Act, EPA has
found that the approval of this State rule was in error. The State has
reached the same conclusion and concurs with EPA's decision that Part
211.2 was submitted and approved in error and should be removed from
the approved SIP. Consequently, EPA is removing 6 NYCRR Part 211.2 from
the approved New York SIP, pursuant to section 110(k)(6) of the Act.
II. EPA Final Rulemaking Action
EPA is removing 6 NYCRR Part 211.2 of the New York air quality
Administrative Rules from the approved New York SIP pursuant to section
110(k)(6) of the Act.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
relevant adverse comments be filed. This rule will be effective January
26, 1999 without further notice unless the Agency receives relevant
adverse comments by December 28, 1998.
If EPA receives such comments, then EPA will publish a timely
withdrawal of the final rule informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this rule. Any parties interested
in commenting on this rule should do so at this time. If no such
comments are received, the public is advised that this action will be
effective on January 26, 1999 and no further action will be taken on
the proposed rule.
III. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order (E.O.)
[[Page 65558]]
12866, entitled ``Regulatory Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, Executive Order 12875
requires EPA to provide to the Office of Management and Budget a
description of the extent of EPA's prior consultation with
representatives of affected State, local and tribal governments, the
nature of their concerns, copies of any written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, E.O. 12875 requires EPA to develop an
effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
Today's rule does not create a mandate on state, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of E.O. 12875
do not apply to this rule.
C. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it does not involve
decisions intended to mitigate environmental health or safety risks.
D. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of E.O. 13084 do not apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This final rule will not have a significant impact on a
substantial number of small entities because 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
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Clean Air Act, preparation of 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).
F. 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.
G. Submission to Congress and the Comptroller General
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. This rule is not a
``major'' rule as defined by 5 U.S.C. 804(2).
H. 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 January 26, 1999. 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
[[Page 65559]]
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, Intgovernmental
relations, Reporting and recordkeeping.
Dated: November 16, 1998.
William J. Muszynski,
Acting Regional Administrator, Region 2.
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 52.1679 is amended by revising the entry for ``Part 211,
General Prohibitions'' 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 date Comments
date
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Part 211, General Prohibitions........... 8/11/83 November 27, 1998 [citation Section 211.2 has been
of this document]. removed from the approved
plan.
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[FR Doc. 98-31542 Filed 11-25-98; 8:45 am]
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