[Federal Register Volume 71, Number 84 (Tuesday, May 2, 2006)]
[Proposed Rules]
[Pages 25800-25802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-6618]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket No. EPA-R02-OAR-2006-0303; FRL-8164-3]


Approval and Promulgation of Implementation Plans; New York Ozone 
State Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve a revision to the New York 
State Implementation Plan (SIP) related to the control of oxides of 
nitrogen (NOX) and volatile organic compounds (VOC) from 
stationary sources. The SIP revision consists of amendments to New 
York's Code of Rules and Regulations Parts 214, ``Byproduct Coke Oven 
Batteries,'' and 216, ``Iron and/or Steel Processes.'' The revision was 
submitted to comply with the 1-hour ozone Clean Air Act reasonably 
available control technology requirements for major sources of VOC and 
NOX not covered by Control Techniques Guidelines. The 
intended effect of this action is to propose approval of control 
strategies which will result in emission reductions that will help 
achieve attainment of the national ambient air quality standard for 
ozone.

DATES: Comments must be received on or before June 1, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2006-0303, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 212-637-3901.
     Mail: Raymond Werner, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: 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 Docket ID No. EPA-R02-OAR-
2006-0303. 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://www.regulations.gov, 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 http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, 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 http://www.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. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3381.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action is EPA Proposing Today?
II. What Are the Clean Air Act Requirements?
    A. What are the volatile organic compound (VOC) Reasonably 
Available Control Technology (RACT) requirements?
    B. What are the oxides of nitrogen (NOX) RACT 
requirements?
III. What Did New York Include in its Submittals?
IV. What Are the Revisions to Part 214, ``By-Product Coke Oven 
Batteries'' and Part 216, ``Iron and/or Steel Processes''?
    A. What is the definition of generic RACT and do Parts 214 and 
216 contain generic RACT provisions?
    B. How has New York addressed case-by-case RACT determinations?
V. Conclusion
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing Today?

    The EPA is proposing to approve a revision to the New York Ozone 
State Implementation Plan (SIP). The SIP revision consists of 
amendments to New York's Code of Rules and Regulations, Parts 214, 
``Byproduct Coke Oven Batteries,'' and 216, ``Iron and/or Steel 
Processes'' and is intended to comply with certain 1-hour ozone Clean 
Air Act Reasonably Available Control Technology (RACT) requirements.

II. What Are the Clean Air Act Requirements?

A. What are the volatile organic compound (VOC) Reasonably Available 
Control Technology (RACT) requirements?

    The Clean Air Act (Act) as amended in 1990 sets forth a number of 
requirements that states with areas designated as nonattainment for 
ozone must satisfy and a timetable for satisfying these requirements. 
The specific requirements vary depending upon the severity of the ozone 
problem. One of the requirements, and the subject of this proposed 
rulemaking, requires states to adopt RACT rules for various VOC source 
categories. EPA has defined RACT as the lowest emission limitation that 
a particular source is capable of meeting by the application of control 
technology that is reasonably available considering technological and 
economic feasibility (44 FR 53762; September 17, 1979).
    Section 182 of the Act sets forth two separate RACT requirements 
for ozone nonattainment areas. The first requirement, contained in 
section 182(a)(2)(A) of the Act, and referred to as RACT fix-up, 
requires the correction of RACT rules for which EPA identified 
deficiencies before the Act was amended in 1990. The second 
requirement, set forth in section 182(b)(2) of the Act, applies to 
moderate (or worse) ozone nonattainment areas as well as to ozone 
transport regions. The goal of this latter requirement is to ensure 
that areas not required previously to adopt RACT for some or all of the 
major stationary sources, adopt rules and ``catch-up'' to those areas 
subject to more stringent RACT requirements.
    EPA issued three sets of Control Techniques Guideline (CTG) 
documents, establishing a ``presumptive norm'' for RACT for various 
categories of VOC sources. The three sets of CTGs were (1) Group I--
issued before January 1978 (15 CTGs); (2) Group II--issued in 1978 (9 
CTGs); and (3) Group III--issued in the early 1980's (5 CTGs). Those

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sources not covered by a CTG are referred to as non-CTG sources. 
Section 182(b)(2) of the Act requires states with ozone nonattainment 
areas classified as moderate or worse to develop RACT for all pre-
enactment CTG source categories, for all sources subject to post-
enactment CTGs and for all non-CTG major sources in those areas. Under 
the pre-1990 Clean Air Act, ozone nonattainment areas were required to 
adopt RACT rules for sources of VOC emissions.
    New York has previously addressed most of these requirements and 
EPA has approved these revisions into the New York State Implementation 
Plan (SIP).

B. What are the oxides of nitrogen (NOX) RACT requirements?

    The air quality planning requirements for the reduction of 
NOX emissions using RACT are set out in section 182(f) of 
the Act. EPA further defines the section 182(f) requirements in a 
notice, ``State Implementation Plans; Nitrogen Oxides Supplement to the 
General Preamble; Clean Air Act Amendments of 1990 Implementation of 
Title I; Proposed Rule,'' published November 25, 1992 (57 FR 55620). 
Refer to the November 25, 1992 notice for detailed information on the 
NOX requirements. Also refer to additional guidance 
memoranda that EPA released subsequent to the NOX 
Supplement. The additional guidance includes but is not limited to: EPA 
publication EPA-452/R-96-005 (March 1996) entitled ``NOX 
Policy Documents for The Clean Air Act of 1990;'' EPA's policy 
memorandum on the approval options for generic RACT rules submitted by 
states entitled ``Approval Options for Generic RACT Rules Submitted to 
Meet the non-CTG VOC RACT Requirement and Certain NOX RACT 
Requirements'' (November 7, 1996); EPA's draft system-wide averaging 
trading guidance (December 1993); and EPA's publications of 
``Alternative Control Technique Documents,'' which are technical 
documents identifying alternative controls for most categories of 
stationary sources of NOX.
    The Act requires that states establish requirements, where 
practicable, for major stationary sources to include NOX 
RACT controls by May 31, 1995.

III. What Did New York Include in Its Submittals?

    On July 8, 1994, New York State Department of Environmental 
Conservation (NYSDEC) submitted to EPA a request to revise its SIP. The 
revisions consisted of amendments to New York's Code of Rules and 
Regulations (NYCRR) Parts 214, ``Byproduct Coke Oven Batteries,'' and 
216, ``Iron and/or Steel Processes.'' Parts 214 and 216 were adopted by 
the State on July 8, 1994 and became effective on September 22, 1994. 
These regulations are intended to address, at least in part, the 
requirements of the Act explained in Section I of this notice. It 
should be noted that because the specific requirements of the Act which 
New York must address vary relative to the severity of the ozone 
problem in a specific metropolitan area, the applicability of New 
York's Parts 214 and 216 also varies accordingly. A summary of EPA's 
review and findings concerning the revisions to Parts 214 and 216 
follows.

IV. What Are the Revisions to Part 214, ``By-Product Coke Oven 
Batteries'' and Part 216, ``Iron and/or Steel Processes''?

Part 214

    Revised Part 214 includes definitions which have been added for 
convenience in interpreting the provisions of Part 214. Revised Part 
214 also includes a new subdivision, subpart 214.9(b) which requires 
facilities subject to this rule to comply with RACT requirements. 
Facilities subject to this rule must submit a compliance plan which 
identifies RACT for each NOX and VOC emission point or limit 
the facility's potential to emit these contaminants below threshold 
applicability levels through federally and state enforceable special 
conditions in permits to construct and/or certificates to operate. A 
compliance plan must identify the emission points not equipped with 
RACT and must include a schedule for installation of RACT. Subpart 
214.9(b) required that compliance plans be submitted to the NYSDEC by 
October 20, 1994, and RACT implemented by May 31, 1995.
    VOC emission points which are subject to and are in compliance with 
subparts L or FF of the national emission standards for hazardous air 
pollutants in 40 CFR Part 61 are considered to be equipped with RACT 
for purposes of compliance with subpart 214.9(b).
    Pursuant to subpart 214.9(b)(5), any other process specific RACT 
determinations developed by the facilities, which have been determined 
by the NYSDEC to be acceptable, must be submitted to EPA for approval 
as SIP revisions.

Part 216

    Revised Part 216 includes definitions which have been added for 
convenience in interpreting the provisions of Part 216. Revised Part 
216 also includes a new subdivision, subpart 216.5 which requires 
facilities subject to this rule to comply with RACT requirements. 
Facilities subject to this rule must submit a compliance plan which 
identifies RACT for each NOX and VOC emission point or limit 
the facility's potential to emit these contaminants below threshold 
applicability levels through federally and state enforceable special 
conditions in permits to construct and/or certificates to operate. A 
compliance plan must identify the emission points not equipped with 
RACT and must include a schedule for installation of RACT. Subpart 
216.5 required that compliance plans be submitted to the NYSDEC by 
October 20, 1994, and RACT implemented by May 31, 1995.
    Pursuant to subpart 216.5(c)(4), any process specific RACT 
determinations developed by the facilities, which have been determined 
by the NYSDEC to be acceptable, must be submitted to EPA for approval 
as SIP revisions.

A. What Is the Definition of Generic RACT and Do Parts 214 and 216 
Contain Generic RACT Provisions?

    Generic provisions are those portions of a regulation which require 
the application of RACT to an emission point, but the degree of control 
is not specified in the rule and is to be determined on a case-by-case 
basis taking technological and economic factors into consideration. New 
York refers to these as ``process specific RACT demonstrations.'' Under 
the Act, these individually determined RACT limits would then need to 
be submitted by a state as a SIP revision for EPA approval. On November 
7, 1996, EPA issued a policy memorandum providing additional guidance 
for approving regulations which contain these ``generic provisions''. 
(Sally Shaver, Director, Air Quality Strategies and Standards Division, 
memorandum to EPA Division Directors, ``Approval Options for Generic 
RACT Rules Submitted to Meet the non-CTG VOC RACT Requirement and 
Certain NOX RACT Requirements'').
    EPA policy allows for the full approval of state rules containing 
generic RACT requirements prior to actual EPA approval of SIP revisions 
establishing RACT for each individual major source making use of the 
generic RACT requirements. However, to allow this, the state must 
provide an analysis that shows that the sources likely to make use of 
these generic requirements would only represent a small amount or de-
minimis level of emissions and that the majority of emissions would be 
regulated by a specified RACT level of

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control included in the general rule. An EPA approval of this generic 
provision does not exempt the remaining sources from complying with 
RACT, but does provide an opportunity for EPA to make a determination 
that the state has met a non-CTG requirement prior to taking action on 
all of the individual case-by-case RACT determinations. Parts 214 and 
216 both include generic RACT provisions requiring the application of 
RACT on a case-by-case basis for any item of equipment, process or 
source where the degree of control has not been specified in the 
general rule.

B. How Has New York Addressed the Case-by-Case RACT Determinations?

    In a letter dated March 1, 2006, New York provided sufficient data 
for EPA to evaluate the de-minimis level of NOX emissions 
from generic sources in the State that are subject to Parts 214 and 
216. New York also determined that there are no sources located in New 
York State which are subject to the VOC RACT requirements of Parts 214 
and 216 which would need to submit individual case-by-case RACT 
determinations as single source SIP revisions. Therefore, New York 
provided de-minimis data for NOX sources only.
    Given the State's data, EPA determined that 0.50 percent of the 
NOX emissions subject to RACT controls have either not yet 
been submitted to EPA as single source SIP revisions or, if submitted, 
have not yet been approved by EPA. This 0.50 percent level includes 
NOX emissions from four facilities for which New York is 
required to submit single source SIP revisions addressing 
NOX RACT requirements for these facilities. EPA policy 
indicates that 0.50 percent is below the de-minimis level.\1\ EPA has 
determined that New York's NOX RACT regulation conforms to 
EPA's policy regarding the approval of generic RACT provisions or 
rules. Therefore, EPA proposes full approval of the generic RACT 
provisions of Part 214 and 216. Subparts 214.9(b)(5) and 216.5(c)(4) 
require New York to submit any remaining case-by-case RACT 
determinations for the NOX sources to EPA for approval as 
single source SIP revisions.
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    \1\ EPA guidance (``Approval Options for Generic RACT Rules 
Submitted to Meet the non-CTG VOC RACT Requirement and Certain 
NOX RACT Requirements,'' November 7, 1996) provides that 
where the non-approved RACT requirements concern sources whose 
emissions represent less than 5 percent of the 1990 stationary 
source NOX inventory, excluding utility boilers, it may 
be appropriate to issue a full approval of the generic RACT 
regulation.
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V. Conclusion

    EPA has evaluated New York's submittal for consistency with the 
Act, EPA regulations, and EPA policy. EPA is proposing to approve the 
revisions to Part 214, ``By-Product Coke Oven Batteries'' and Part 216, 
``Iron and/or Steel Processes'' of New York's regulations as meeting 
the VOC and NOX RACT ``catch-up'' requirements under 
sections 182(b)(2) and 182(f) of the Act for non-CTG major sources.

VI. 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, 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 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 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 24, 2006.
Alan J. Steinberg,
Regional Administrator, Region 2.
[FR Doc. E6-6618 Filed 5-1-06; 8:45 am]
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