[Federal Register Volume 69, Number 193 (Wednesday, October 6, 2004)]
[Proposed Rules]
[Pages 59839-59843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22484]


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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: [email protected].
    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 
([email protected]) for specific questions on New York's 
NOX RACT SIP revision or Kirk J. Wieber 
([email protected]) 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 (65 FR 67249, 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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