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Approval and Promulgation of Implementation Plans; New York State Implementation Plan Revision
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 6, 2004 (Volume 69, Number 193)]
[Proposed Rules]
[Page 59839-59843]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc04-30]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. R02-OAR-2004-NY-0001, FRL-7824-9]
Approval and Promulgation of Implementation Plans; New York State
Implementation Plan Revision
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes approval of
a request from New York to revise its State Implementation Plan (SIP)
for ozone to incorporate revisions to Subpart 227-2 ``Reasonably
Available Control Technology (RACT) for Oxides of Nitrogen
(NOX)'' of Part 227 ``Stationary Combustion Installations''
of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York (6NYCRR). The revision relates to the control
of oxides of nitrogen emissions from stationary industrial sources.
This SIP revision consists of a control measure needed to meet the
shortfall in emissions reduction identified by EPA in New
[[Page 59840]]
York's one-hour ozone attainment demonstration SIP.
The intended effect of this proposed rule is to approve a control
strategy which will result in emission reductions that will help
achieve attainment of the national ambient air quality standard for
ozone required by the Clean Air Act.
DATES: Comments must be received on or before November 5, 2004.
ADDRESSES: Submit your comments, identified by Regional Material in
EDocket (RME) ID Number R02-OAR-2004-NY-0001 by one of the following
methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
2. Agency Web site: http://docket.epa.gov/rmepub/ Regional Material
in EDocket (RME), EPA's electronic public docket and comment system, is
EPA's preferred method for receiving comments. Once in the system,
select ``quick search,'' then key in the appropriate RME Docket
identification number. Follow the on-line instructions for submitting
comments.
3. E-mail: Werner.Raymond@epa.gov.
4. Fax: (212) 637-3901.
5. Mail: ``RME ID Number R02-OAR-2004-NY-0001'', Raymond Werner,
Chief, Air Programs Branch, Environmental Protection Agency, Region 2
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
6. Hand Delivery or Courier: Deliver your comments to: 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 Regional Material in EDocket
(RME) ID Number R02-OAR-2004-NY-0001. 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://docket.epa.gov/rmepub/, 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 Regional Material in EDocket (RME), regulations.gov, or e-mail.
The EPA RME website and the federal regulations.gov website are
``anonymous access'' systems, 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 RME or 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, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
Regional Material in EDocket (RME) index at http://docket.epa.gov/
rmepub/.Although listed in the index, some information is not
publicly available, i.e., 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 RME 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. EPA requests that
if at all possible, you contact the contact listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30 excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella
Gardella.Anthony@epa.gov) for specific questions on New York's
NOX RACT SIP revision or Kirk J. Wieber
Wieber.Kirk@epa.gov) for specific questions on New York's ozone
attainment demonstration; Air Programs Branch, Environmental Protection
Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212)
637-3892 or (212) 637-3381, respectively.
SUPPLEMENTARY INFORMATION: The Environmental Protection Agency (EPA)
proposes to approve the New York State Department of Environmental
Conservation's (New York's) NOX RACT State Implementation
Plan (SIP) revision. The following table of contents describes the
format for this SUPPLEMENTARY INFORMATION section.
I. EPA's Proposed Action
A. What Action Is EPA Proposing Today?
B. Why Is EPA Proposing This Action?
C. What Are the Clean Air Act Requirements for NOX
RACT?
D. What Are the Clean Air Act Requirements for Attainment of the
One-Hour Ozone Standard?
E. When Was New York's Additional NOX RACT
Requirement Proposed and Adopted?
F. What Is EPA's Finding on New York's Submittal?
II. Conclusion
III. Statutory and Executive Order Revisions.
I. EPA's Proposed Action
A. What Action Is EPA Proposing Today?
EPA proposes to approve a revision to New York's ground level ozone
State Implementation Plan (SIP) which New York submitted on February
18, 2004. The SIP revision includes amendments to the following two
regulations: Subpart 227-2 entitled ``Reasonably Available Control
Technology (RACT) for Oxides of Nitrogen (NOX)'' of Part 227
entitled, ``Stationary Combustion Installation;'' and Subpart 201-3
entitled, ``Exemptions and Trivial Activities,'' of Part 201 entitled,
``Permits and Registration,'' all of which are part of Title 6 of the
New York Codes of Rules and Regulations. These amended rules were
adopted on January 9, 2004. New York submitted the regulations in order
to strengthen its one-hour ozone SIP. New York amended Subpart 227-2
for the purpose of reducing additional emissions of NOX in
response to emission reduction shortfalls identified by EPA (64 FR
70364; December 16, 1999) for attainment of New York's one-hour ozone
standard. New York amended Subpart 201-3 to be consistent with
amendments to Subpart 227-2. EPA proposes that New York's submittal is
fully approvable as a SIP strengthening measure for New York's one-hour
ground level ozone SIP and has determined that it meets New York's
commitment to adopt a control measure for additional NOX
reductions to close the shortfall needed to attain the one-hour ozone
standard.
B. Why Is EPA Proposing This Action?
EPA is proposing this action to:
? Give the public the opportunity to submit comments on
EPA's proposed action, as discussed in the ADDRESSES section,
[[Page 59841]]
? Approve a control measure which reduces NOX
emissions, a precursor of ozone formation, to help attain the one-hour
national ambient air quality standard (NAAQS) for ozone,
? Fulfill New York's and EPA's requirements under the Clean
Air Act (the Act),
? Make New York's NOX RACT regulations federally
enforceable and available for emission reduction credit in the SIP.
C. What Are the Clean Air Act Requirements for NOX RACT?
The Act requires certain states to develop RACT regulations for
major stationary sources of NOX and to provide for the
implementation of the required measures as soon as practicable but no
later than May 31, 1995. Under the Act, the definition of major
stationary source is based on the tons per year (tpy) air pollution a
source emits and the classification of the air in the area in which the
source is located. New York is within the Northeast ozone transport
region established by section 184(a) of the Act. In ozone transport
regions, attainment/unclassified areas as well as marginal and moderate
ozone nonattainment areas, a major stationary source for NOX
is considered to be one which emits or has the potential to emit 100
tpy or more of NOX and is subject to the requirements of a
moderate nonattainment area. New York has defined a major stationary
source of NOX as a source which has the potential to emit 25
tpy in the New York City and lower Orange County metropolitan areas and
100 tpy in the rest of the State. Consequently, all major stationary
sources of NOX within the State of New York are required to
implement RACT no later than May 31, 1995. For detailed information on
the Act requirements for NOX RACT see the Technical Support
Document prepared for today's action.
D. What Are the Clean Air Act Requirements for Attainment of the One-
Hour Ozone Standard?
Section 182 of the Act specifies the required SIP submissions and
requirements for areas classified as nonattainment for ozone and when
these submissions and requirements are to be submitted to EPA by the
states. The specific requirements vary depending upon the severity of
the ozone problem. The New York--Northern New Jersey--Long Island area
is classified as a severe ozone nonattainment area. Under section 182,
severe ozone nonattainment areas were required to submit demonstrations
of how they would attain the one-hour ozone NAAQS. EPA approved New
York's attainment demonstration on February 4, 2002 (67 FR 5170) based
on New York adopting additional volatile organic compound (VOC) and
NOX emission reductions. This proposal addresses the
NOX reductions to which New York committed. Moreover, the
emission reduction provided by this control measure will also be
necessary for attainment of the 8-hour ozone NAAQS.
In a related matter, the Ozone Transport Commission (OTC) developed
potential control measures into model rules for a number of source
categories and estimated emission reduction benefits from implementing
these model rules. These model rules were designed for use by states in
developing their own regulations to achieve additional emission
reductions to close emission shortfalls. New York used the OTC model
rule for additional NOX reductions as the basis for the
regulations which EPA is acting upon in this proposal.
E. When Was New York's Additional NOX RACT Requirement
Proposed and Adopted?
New York's additional NOX RACT requirements were proposed on July
16, 2003 and the State accepted written comments until the end of the
public comment period on September 12, 2003. New York held public
hearings on the proposed amendments on August 19, 21 and 23, 2003. The
State adopted the amended NOX RACT requirements on January
9, 2004. New York's SIP revision was submitted to EPA on February 18,
2004. On May 13, 2004 EPA determined the submittal to be
administratively and technically complete.
F. What Is EPA's Finding on New York's Submittal?
The following is a summary of EPA's finding of New York's February
18, 2004 SIP submittal consisting of revisions to Subparts 227-2 and
201-3. These revisions go beyond the Act requirements for RACT at
facilities that emit NOX. New York previously submitted SIP
revisions which addressed the NOX RACT requirements and for
which EPA approved as SIP revisions on April 28, 2000 (65 FR 24875).
The State also developed a NOX Budget Trading Program (Part
204) which EPA approved on May 22, 2001 (66 FR 28059).
New York revised Subpart 227-2 to further reduce emissions of
NOX in three principal ways. First, New York revised Subpart
227-2 by lowering the presumptive NOX emission limits for
stationary internal combustion engines (IC Engines). The new
NOX emission limits, expressed as grams NOX per
brake horsepower hour, range from 1.5 to 2.3 depending upon the type IC
Engine and the fuel combusted which will result in additional
NOX reductions ranging from 25 percent to approximately 78
percent. Secondly, New York revised Subpart 227-2 by lowering the
applicability from 225 horsepower to 200 horsepower for IC Engines
which not only are located in the severe one-hour ozone nonattainment
area but also provide primary power or are used in peak shaving
generation. In New York State, the severe one-hour ozone nonattainment
area includes the New York City metropolitan area and the lower Orange
County metropolitan area. For the remainder of the State, the
applicability for IC Engines remains unchanged at 400 horsepower.
Third, owners or operators of IC Engines have the option of complying
either by meeting the new presumptive NOX emission limits or
by meeting an emission limit which reflects at least 90 percent
NOX reduction from its 1990 baseline emissions, if
available. Affected sources must be in compliance with the new Subpart
227-2 requirements by April 1, 2005. The amendments to Subpart 227-2 do
not include any new emission limit requirements for source categories
other than IC Engines.
The provision at section 227-2.5(c) allows an owner or operator of
a source subject to this rule who can adequately demonstrate to New
York that the new emission limits are not technically or economically
feasible, even through fuel switching, selective catalytic reduction
(SCR) or system wide averaging, to apply for a less stringent case-by-
case RACT emission limit. The requirement to consider SCR technology is
a new criteria added to this provision. This provision is also
available to owners or operators of newly regulated IC Engines. Any
alternative RACT emission limit must be approved by New York and
submitted to EPA as a SIP revision in accordance with the SIP approved
compliance option at section 227-2.5(c) of Subpart 227-2.
In addition, New York revised Subpart 227-2 to require owners or
operators of affected IC Engines and any source that previously
received a case-by-case alternative RACT emission limit pursuant to
section 227-2.5(c) to submit to New York either a permit application or
a permit modification which includes updated versions of compliance and
operating plans. Owners or operators must comply with this new
requirement by July 1, 2004.
[[Page 59842]]
New York made the following additional revisions to Subpart 227-2:
deletion, throughout Subpart 227-2, of the NOX RACT
compliance date requirement of May 31, 1995; revisions to section 227-
2.3 [previously entitled ``Compliance plan and deadlines'']
including
deletion of compliance milestone dates for certain compliance plan and
permitting requirements; and revisions to section 227-2.6(b) for
certain sources required to submit Continuous Emission Monitoring
System (CEMS) compliance plans by May 31, 1995. These revisions remove
intermediate compliance steps whose effective dates have passed and the
final compliance date which has also passed. The revisions do not
affect the applicable requirements and are not a relaxation of SIP
requirements. The deletion of the previous rule's effective date in no
way relieves any source who was required to comply by that effective
date. Should it become necessary to enforce against an owner or
operator of sources that were required to be in compliance with any
NOX RACT provision, pursuant to its authority under the Act,
and the SIP in effect at the time of the violation, EPA will use the
May 31, 1995 compliance date in the SIP approved version of Subpart
227-2 (66 FR 28059; May 22, 2001), or in the SIP as approved by this
action, whichever is deemed appropriate.
New York revised Subpart 201-3 for the purpose of regulatory
consistency with the new revisions to Subpart 227-2. New York revised
Subpart 201-3 to exempt the following sources from permitting
requirements at non-title V permitting facilities, however these
sources must now be included in title V permitting applications: (1)
Diesel or natural gas powered IC Engines, located within the severe
one-hour ozone nonattainment area, which have applicability limits
lowered from 225 brake horsepower to 200 brake horsepower; and (2)
emergency power generating IC Engines and engine test cells at engine
manufacturing facilities which are utilized for research and
development, reliability performance testing, or quality assurance
performance testing. It should be noted that there is a minor
discrepancy in terminology used in Subparts 227-2 and 201-3 when
referring to the engine size applicability limit (``horsepower'' vs
``brake horsepower'' respectively). Therefore, EPA recommends that, at
its next opportunity, New York clarify this discrepancy by revising
Subpart 227-2 by changing the engine size applicability term
``horsepower'' to the term ``brake horsepower (bhp)'' so that it is
consistent with the term used in the exemption section of Subpart 201-
3. For additional details the reader is referred to the Technical
Support Document prepared for today's action.
EPA expects that the revisions to Subpart 227-2 will result in
additional reductions of NOX emissions to help New York meet
the emission reduction shortfall and attain the one-hour ozone
standard. New York has stated to EPA that once all six control measures
have been adopted, it will update the projection inventories of
NOX and VOC emissions to establish an accurate estimate of
the emission reductions. New York will release the revised projection
inventories for public comment and submit them to EPA for approval.
EPA has evaluated New York's NOX RACT SIP submittal and
proposes to find it approvable. The February 18, 2004 SIP submittal
will strengthen New York's SIP for reducing ground level ozone by
providing additional NOX reductions beginning on April 1,
2005.
EPA completed a detailed analysis and evaluation to determine the
approvability of New York's February 18, 2004 SIP revision. EPA's
evaluation of the RACT submittal is detailed in a document entitled
``Technical Support Document-NOX RACT SIP Revision-State of
New York.'' A copy of that document is available, upon request, from
the EPA Regional Office listed in the ADDRESSES section of this
document or the Technical Support Document can be viewed at
http://docket.epa.gov/rmepub/.
II. What Is EPA's Conclusion?
EPA has evaluated New York's submittal for consistency with the
Act, EPA regulations, and EPA policy. The proposed new control measures
will strengthen the SIP by providing additional NOX emission
reductions. Accordingly, EPA is proposing to approve the revision to
Subpart 227-2, as adopted on January 9, 2004, into New York's ozone
SIP. At a later date, EPA will act on Subpart 201-3, as adopted by New
York on January 9, 2004.
In revising Subpart 227-2, New York deleted the final compliance
date applicable to sources because the date had passed, and sources are
now expected to be in compliance. EPA believes that the deletion made
it less clear to sources obligated to comply with the May 31, 1995
compliance date in the Statute and in the previously approved SIP that
they are obliged to have complied by that date. However, deletion of
the date does not eliminate the effective date from the prior SIP
approved rule or from the Statute and thus does not impact on the State
and EPA's authority to enforce. In the event EPA needs to take
enforcement action, it will base penalties for noncompliance on the
final compliance date in effect at the time of the violation.
III. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed 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
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will 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 rule proposes to approve pre-
existing requirements under state law and does 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 proposed rule also does not have tribal implications because
it will 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 (59 FR 22951, November 9, 2000). This action also does not
have Federalism implications because it does 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 proposes to approve a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Act. This proposed rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885,
[[Page 59843]]
April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the 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 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 proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen Dioxides, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 28, 2004.
Kathleen C. Callahan,
Acting Regional Administrator, Region 2.
[FR Doc. 04-22484 Filed 10-5-04; 8:45 am]
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