[Federal Register Volume 72, Number 139 (Friday, July 20, 2007)]
[Proposed Rules]
[Pages 39773-39776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14061]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. EPA-R02-OAR-2007-0368, FRL-8442-3]


Approval and Promulgation of Implementation Plans; New York 
Emission Statement Program

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the State Implementation Plan (SIP) revision submitted by the 
State of New York on July 7, 2006 for the purpose of enhancing an 
existing Emission Statement Program for stationary sources in New York. 
The SIP revision consists of amendments to Title 6 of the New York 
Codes Rules and Regulations, Chapter III, Part 202, Subpart 202-2, 
Emission Statements. The SIP revision was submitted by New York to 
satisfy the ozone nonattainment provisions of the Clean Air Act. These 
provisions require states in which all or part of any ozone 
nonattainment area is located to submit a revision to its SIP which 
requires owner/operators of stationary sources of volatile organic 
compounds (VOC) and oxides of nitrogen (NOX) to provide the 
State with a statement, at least annually, of the source's actual 
emissions of VOC and NOX.
    The Emission Statement SIP revision EPA proposes to approve 
enhances the reporting requirements for VOC and NOX and 
expands the reporting requirement, based on specified emission 
thresholds, to include carbon monoxide (CO), sulfur dioxides 
(SO2), particulate matter measuring 2.5 microns or less 
(PM2.5), particulate matter measuring 10 microns or less 
(PM10), ammonia (NH3), lead (Pb) and lead 
compounds and hazardous air pollutants (HAPS). The intended effect is 
to obtain improved emissions related data from facilities located in 
New York, allowing New York to more effectively plan for and attain the 
national ambient air quality standards (NAAQS). The Emission Statement 
rule also improves EPA's and the public's access to facility-specific 
emission related data.

DATES: Comments must be received on or before August 20, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2006-0368, by one of the following methods:
    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-
2006-0368. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
The 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 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: Raymond K. Forde, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3716, [email protected].
    Copies of the State submittals are available at the following 
addresses for inspection during normal business hours:
    Environmental Protection Agency, Region 2 Office, Air Programs 
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    New York State Department of Environmental Conservation, Division 
of Air Resources, 625 Broadway, 2nd Floor, Albany, New York 12233.

SUPPLEMENTARY INFORMATION: The following table of contents describes 
the format for this section:

I. What Is the Nature of EPA's Action?
II. What Are the Emissions Reporting Required by the Clean Air Act 
and How Does New York's Regulation Address Them?
III. What Was Included in New York's Submittal?
IV. What Is EPA's Conclusion?
V. Statutory and Executive Order Reviews

[[Page 39774]]

I. What Is the Nature of EPA's Action?

    EPA is proposing to approve the State Implementation Plan (SIP) 
revision submitted by the State of New York on July 7, 2006 for the 
purpose of enhancing an existing Emission Statement program for 
stationary sources in New York. The SIP revision consists of amendments 
to Title 6 of the New York Codes Rules and Regulations (NYCRR), Chapter 
III, Part 202, Subpart 202-2, Emission Statements (Emission Statement 
rule).
    The SIP revision was submitted by New York to satisfy the ozone 
nonattainment provisions of the Clean Air Act. These provisions require 
states in which all or part of any ozone non-attainment area is located 
to submit a revision to its SIP which requires owner/operators of 
stationary sources of volatile organic compounds (VOC) and oxides of 
nitrogen (NOX) to provide the State with a statement, at 
least annually, of the source's actual emissions of VOC and 
NOX.

II. What Are the Emissions Reporting Required by the Clean Air Act and 
How Does New York's Regulation Address Them?

Emission Statements (Annual Reporting of VOC and NOX)

    The air quality planning and SIP requirements for ozone 
nonattainment and transport areas are established in Subparts 1 and 2 
of Part D of Title I of the Clean Air Act, as amended in 1990 (the 
Act). EPA has published a ``General Preamble'' and ``Appendices to the 
General Preamble'' (see 57 FR 13498 (April 16, 1992), and 57 FR 18070 
(April 28, 1992)) describing how EPA intends to review SIPs submitted 
under Title I of the Act.
    EPA has also issued a draft guidance document, entitled ``Guidance 
on the Implementation of an Emission Statement Program'' (Emission 
Statement Guidance), dated July 1992, which describes the minimum 
requirements for approvable emission statement programs.
    Section 182(a)(3)(B)(i) of the Act requires states in which all or 
part of any ozone non-attainment area is located to submit SIP 
revisions to EPA by November 15, 1992, which require owner/operators of 
stationary sources of VOC and NOX to provide the state with 
a statement, at least annually, of the source's actual emissions of VOC 
and NOX. Sources were to submit the first emission 
statements to their respective states by November 15, 1993. Pursuant to 
the Emission Statement Guidance, if the source emits either VOC or 
NOX at or above levels for which the State Emission 
Statement rule requires reporting, the other pollutant (VOC or 
NOX) from the same facility should be included in the 
emission statement, even if the pollutant is emitted at levels below 
the minimum reporting level.
    Section 182(a)(3)(B)(ii) of the Act allows states to waive, with 
EPA approval, the requirement for an emission statement for classes or 
categories of sources located in nonattainment areas, which emit less 
than 25 tons per year of actual plant-wide VOC and NOX, 
provided the class or category is included in the base year and 
periodic inventories and emissions are calculated using emission 
factors established by EPA (such as those found in EPA publication AP-
42) or other methods acceptable to EPA.
    EPA has determined that New York's Emission Statement rule, which 
requires facilities to report information for the criteria pollutants 
and the associated precursors listed above, satisfies the federal 
emission statement reporting requirements for major sources.

Consolidated Emission Reporting Rule (Annual Reporting for All Criteria 
Pollutants)

    In order to consolidate reporting requirements by the states to 
EPA, on June 10, 2002 (See 67 FR 39602), EPA published the final 
Consolidated Emissions Reporting Rule (CERR). The purpose of the CERR 
is to simplify the states' annual reporting, to EPA, of criteria 
pollutants (VOC, NOX, SO2, PM10, 
PM2.5, CO, Pb) for which National Ambient Air Quality 
Standards (NAAQS) have been established, and annual reporting of 
NH3, a precursor pollutant. The CERR also provides options 
for data collection and exchange, and unified reporting dates for 
various categories of criteria pollutant emission inventories. The CERR 
requires states to report annually to EPA on emissions of 
NOX, CO, VOC, Pb, SO2 and PM10, for 
industrial point sources, based on specific emission thresholds. The 
CERR emissions reports for calendar year 2001 were due on June 1, 2003, 
and subsequent reports were due every year thereafter (i.e., calendar 
year 2002 emission inventory due June 1, 2004, etc.). Reporting of 
PM2.5 and NH3 from point sources was not required until June 
2004, for emissions that occurred during calendar year 2002.
    EPA has determined that New York's Emission Statement rule, which 
requires facilities to report information for the criteria pollutants 
and the associated precursors mentioned above, satisfies the federal 
CERR requirements for major sources.

Hazardous Air Pollutants (Periodic Reporting of Hazardous Air 
Pollutants)

    In addition to the emission inventory provisions related to the 
criteria pollutants, EPA has requested that the states report on 
hazardous air pollutants (HAPs) emissions from anthropogenic sources, 
for the National Toxics Inventory (NTI). The NTI is a comprehensive 
national inventory of HAP emissions from stationary and mobile sources 
that is revised by EPA every three years.
    The NTI contains emission estimates for point sources, non-point 
sources and mobile sources. Point sources include major and non-point 
source categories as defined in Section 112 of the Clean Air Act. Non-
point source categories include area source categories. Individual 
emission estimates are developed for point sources, while aggregate 
emission estimates at the county level are developed and recorded for 
non-point stationary and mobile sources. The NTI also identifies 
facilities and non-point source categories that are associated with 
MACT categories.

Need for NTI Inventory

    Title V of the Act requires the Administrator to perform an 
oversight role with respect to state issued permits, including permits 
issued to major sources of HAP emissions. In order to determine whether 
that program is being appropriately and lawfully administered by the 
states with respect to major HAP sources, a HAP emission inventory is 
necessary. States are developing programs to regulate HAPs, and Title V 
of the Act requires state Title V programs to include permits for all 
HAP sources emitting major quantities of HAPs (10 tons of one HAP or 25 
tons of multiple HAPs per year). Thus, EPA believes including HAPs in 
the point source inventory is appropriate and necessary.
    Section 112(n)(1)(A) of the Act requires EPA to report to Congress 
on the hazards to public health reasonably anticipated to occur as a 
result of emissions from electric utility steam generating units. 
Section 112(n)(1)(B) requires EPA to provide a report to Congress that 
considers the rate and mass of HAP emissions and the health and 
environmental effects of these emissions. Section 112(c)(6) requires a 
list of categories and subcategories of HAP sources subject to 
standards that account for not less than 90 percent of the aggregate 
emission of each pollutant. Although these new requirements do not 
include specific provisions requiring the compilation of HAP

[[Page 39775]]

emissions inventories, they do introduce the need for such inventories 
in order to carry out the mandate of the statute.
    In addition, Section 112(k)(3) of the Act mandates that EPA develop 
a strategy to control emissions of HAPs from area sources in urban 
areas, and that the strategy achieves a reduction in the incidence of 
cancer attributable to exposure to HAPs emitted by stationary sources 
of not less than 75 percent, considering control of emissions from all 
stationary sources, as well as achieves a substantial reduction in 
public health risks posed by HAPs from area sources. These mandated 
risk reductions are to be achieved by taking into account all emission 
control measures implemented by the Administrator or by the states 
under this or any other laws. A reliable HAP emission inventory 
covering all stationary sources of HAPs, including point and area 
sources, is important in implementing the mandated strategy and 
demonstrating that the strategy achieves the mandated risk reductions. 
It would be virtually impossible for EPA to identify and estimate HAP-
specific emission reductions from all the Federal and state rules that 
might result in HAP emission reductions. Therefore, EPA has determined 
that development of the strategy and assessment of progress in 
achieving the strategic goals requires the development and periodic 
update of a HAP emission inventory. As presented in the July 19, 1999 
Federal Register notice on the National Air Toxics Program: The 
Integrated Urban Strategy (64 FR 38706), a designed approach has been 
developed that depends upon a reliable and periodically updated HAP 
emission inventory as a critical element in the assessments that 
support the development and evaluation of our urban strategy.
    EPA has determined that New York's Emission Statement rule, which 
requires facilities to report information for the HAPs, assists the 
State in satisfying the HAPs reporting requirements for major sources.

III. What Was Included in New York's Submittal?

New York's Submittal

    On July 7, 2006, New York submitted a SIP revision for ozone which 
included an adopted Emission Statement rule. The regulation amends 
Title 6 of the NYCRR, Subpart 202-2, Emission Statements, which was 
originally adopted on July 13, 2004. On April 12, 2005, the New York 
State Department of Environmental Conservation (NYSDEC) adopted these 
amendments, which became effective on May 29, 2005.

EPA's Findings

    EPA has determined that an approvable Emission Statement program 
must have several components. Specifically, a state must submit its 
program as a revision to its SIP, and the state's emission statement 
program must meet the minimum requirements for reporting as outlined in 
EPA's Emission Statement Guidance. The program must include, at a 
minimum, provisions specifying source applicability, definitions, 
compliance, and specific source reporting requirements.
    EPA's technical review of New York's Emission Statement program is 
contained in a technical support document (emission statement 
enforceability checklist) available in the docket at 
www.regulations.gov or by contacting the person identified earlier in 
this notice.

Applicability

    In ozone nonattainment areas within the State, facilities which 
emit or have the potential to emit VOC and/or NOX in amounts 
of 25 tons per year or more must submit, to the State, an annual 
emission statement. In attainment areas located within the State, which 
is part of the ozone transport region (OTR) established by operation of 
law under Section 184 of the Act, New York's Emission Statement rule 
requires facilities actually emitting or having the potential to emit 
50 tons per year or more of VOC or 100 tons per year or more of 
NOX to submit, to the State, an annual emission statement.
    For Title V affected facilities located in ozone nonattainment 
areas within the State, which emit or have the potential to emit VOC 
and/or NOX in amounts of 25 tons per year or more, the 
Emission Statement rule includes provisions that require such 
facilities to submit annual emission statements for VOC, 
NOX, CO, SO2, Pb or lead compounds, 
PM10, PM2.5, NH3 and HAPs.
    For Title V affected facilities located in OTR attainment areas 
within the State, which emit or have the potential to emit 50 tons per 
year or more of VOC or 100 tons per year or more of NOX, the 
Emission Statement rule includes provisions that require such 
facilities to submit annual emission statements for VOC, 
NOX, CO, SO2, Pb or lead compounds, 
PM10, PM2.5, NH3, and HAPs.
    New York's regulation includes provisions that require Title V 
facilities within the State, which emit or have the potential to emit 
100 tons per year or more of any criteria pollutant, to submit annual 
emission statements for VOC, NOX, CO, SO2, Pb or 
lead compounds, PM10, PM2.5, NH3, and 
HAPs.
    New York's regulation includes provisions that require Title V 
facilities which emit or have the potential to emit 10 tons per year or 
more of an individual HAP or 25 tons per year or more of multiple HAPs, 
to submit annual emission statements for VOC, NOX, CO, 
SO2, Pb or lead compounds, PM10, 
PM2.5, NH3, and HAPs.
    EPA has determined that New York's Emission Statement rule contains 
applicability provisions that are consistent with the minimum 
requirements for state emission statement SIPs. In addition, the 
Emission Statement rule assists the State in satisfying the annual 
reporting requirements for the federal CERR, and in developing a HAPs 
emission inventory for use in National Air Toxics Assessment.

Definitions

    The key definitions that New York included in its Emission 
Statement regulation are consistent with the EPA guidance.

Compliance

    Under Section 110 of the Act, all SIP requirements must be 
enforceable by the State and EPA. Article 71 of the New York 
Environmental Conservation Law provides the State with the authority 
to, among other things, issue compliance orders with appropriate 
penalties and injunctive relief for sources failing to comply with the 
Emission Statement rule. EPA has determined that New York has an 
adequate program in place to ensure that the Emission Statement rule is 
enforceable.

Reporting Requirements

    In accordance with CAA Section 182(a)(3)(B) and the Emission 
Statement Guidance, the Emission Statement rule requires facilities to 
supply the necessary source-specific data elements in annual emission 
statements. The survey forms that New York provides to facilities for 
use in reporting emission data are not EPA forms, but still require the 
necessary data.

Confidential Business Information

    On December 29, 2006, EPA sent a letter to NYSDEC, regarding New 
York's Emission Statement rule, requesting clarification on the rule's 
confidential business information (CBI) provision, as it relates to air 
pollutant emissions data collected under the emission statement 
program. The letter requested that NYSDEC clarify one issue related to 
the rule; the trade secret provision found in

[[Page 39776]]

Title 6 of the NYCRR, Chapter III, Part 202, Subpart 202-2.4(i). 
Specifically, EPA requested that NYSDEC supplement the July 7, 2006 SIP 
submittal with a letter that confirms the trade secret provision will 
not restrict: (1) The public's access to facility-related ``emission 
data'' that is contained in emission statements, (2) EPA's access to 
all information contained in emission statements submitted to New York, 
including any emissions related information claimed and/or designated 
as trade secret or as confidential business information, and (3) that 
confirms NYSDEC interprets 6 NYCRR Subpart 202-2.4(i), coupled with 6 
NYCRR Subpart 200.2, Safeguarding Information, to require the 
submission to EPA and release to the public of all information that is 
considered to be emissions data, consistent with the applicable state 
and federal laws on public disclosure, including the Clean Air Act and 
its implementing regulations.
    On April 11, 2007, NYSDEC sent a letter to EPA in response. EPA has 
reviewed the letter and has determined that NYSDEC has adequately 
addressed EPA's concerns.

 IV. What Is EPA's Conclusion?

    EPA has concluded that the New York Emission Statement rule 
contains the necessary applicability, compliance, enforcement and 
reporting requirements for an approvable emission statement program. 
EPA is proposing to approve 6 NYCRR, Chapter III, Part 202, Subpart 
202-2, Emission Statements, as part of New York's SIP.

V. 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 Clean Air 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 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 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, Carbon monoxide, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 8, 2007.
Alan J. Steinberg,
Regional Administrator, Region 2.
 [FR Doc. E7-14061 Filed 7-19-07; 8:45 am]
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