[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Rules and Regulations]
[Pages 70140-70143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28964]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2010-0321, FRL-9212-1]


Approval and Promulgation of Implementation Plans; New York 
Prevention of Significant Deterioration of Air Quality and 
Nonattainment New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to grant a partial approval to revisions of the New York State 
Implementation Plan (SIP) submitted by the New York State Department of 
Environmental Conservation on March 3, 2009. As a result of this 
action, New York will implement its own Prevention of Significant 
Deterioration of Air Quality (PSD) and Nonattainment New Source Review 
(NNSR) State regulations. These revisions create a new New York State 
PSD regulation program and modify the existing New York State NNSR 
regulations in the SIP. These revisions also address changes mandated 
by the revised Federal New Source Review (NSR) regulations, referred to 
as the ``2002 NSR Reform Rules.''
    In this action, EPA is taking final action to approve these 
revisions by issuing a partial approval, with the caveat that EPA is 
taking no action at this time on the PSD permitting threshold 
provisions to the extent that those provisions may require permits for 
sources of greenhouse gas (GHG) emissions that equal or exceed the 100/
250 tons per year (tpy) GHG levels but are less than the thresholds 
identified in EPA's final Tailoring Rule; and the PSD significance 
level provisions of New York's rule to the extent that those provisions 
may treat as significant GHG emissions increases that are less than the 
thresholds identified in the final Tailoring Rule. The PSD 
applicability thresholds below the Tailoring Rule will be acted on, as 
necessary, as part of an EPA national rulemaking or in a separate EPA 
Region 2 rulemaking.

DATES: Effective Date: This rule is effective on December 17, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2010-0321. All documents in the docket are listed on 
the http://www.regulations.gov Web site. All docket materials are 
available either electronically through http://www.regulations.gov or 
in hard copy at

[[Page 70141]]

the Environmental Protection Agency, Region 2 Office, Air Programs 
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is 212-
637-4249.

FOR FURTHER INFORMATION CONTACT: Frank Jon, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4085; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, references to 
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the 
Environmental Protection Agency. The supplementary information is 
arranged as follows:

I. What is being addressed by this document?
II. What sections of New York's rules are we approving in this 
action?
III. What are EPA's responses to comments to EPA's proposal?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is being addressed by this document?

    On March 3, 2009, the State of New York, through the New York State 
Department of Environmental Conservation (NYSDEC), submitted to EPA 
Region 2 revisions to the New York State Implementation Plan (SIP). The 
submittal consists of revisions to three regulations that are already 
part of the New York SIP. The affected regulations are: 6 New York Code 
of Rules and Regulations (NYCRR) Part 231, New Source Review for New 
and Modified Facilities; 6 NYCRR Part 200, General Provisions; and 6 
NYCRR Part 201, Permits and Certificates. The revisions were made to 
create a new New York State PSD regulation program and to update the 
existing New York State nonattainment regulations consistent with 
changes to the Federal NSR regulations published on December 31, 2002 
(67 FR 80186). In today's action, EPA is taking final action to approve 
those revisions by issuing a partial approval, as proposed (see 75 FR 
43892 (July 27, 2010)), with the caveat that EPA is taking no action at 
this time on (1) the PSD permitting threshold provisions to the extent 
that those provisions may require permits for sources of greenhouse gas 
(GHG) emissions that equal or exceed the 100/250 tons per year (tpy) 
GHG levels but are less than the thresholds identified in EPA's final 
Tailoring Rule at 75 FR 31514, 31606 (June 3, 2010); and (2) the PSD 
significance level provisions of New York's rule to the extent that 
those provisions may treat as significant GHG emissions increases that 
are less than the thresholds identified in the final Tailoring Rule. 
Id. We are taking this action, in part, because in its August 11, 2010 
letter to EPA, New York State confirmed to us that they have authority 
to regulate greenhouse gases without any additional rulemaking or other 
administrative action. For PSD applicability thresholds below the 
Tailoring Rule, EPA is still reviewing New York's ability to limit the 
permitting to sources equal to and above the Tailoring Rule thresholds. 
Action on this issue will be forthcoming, as necessary, as part of an 
EPA national action or in a separate EPA Region 2 action.

II. What sections of New York's rules are we approving in this action?

    With respect to 6 NYCRR Part 200, EPA is taking final action to 
approve into the New York SIP only sections 200.1 and 200.9, Table 1 
(Part 231 references), as effective March 5, 2009. EPA is not taking 
final action on the revisions to section 200.10 since they include only 
references to Federal standards and requirements and are therefore 
already Federally enforceable standards and requirements.
    With respect to 6 NYCRR Part 201, EPA is taking final action to 
approve into the New York SIP only those revisions to subpart 201-2, 
effective March 5, 2009, submitted by NYSDEC specifically for 
implementation of the Part 231 NSR permitting program. Specifically, 
EPA is approving the definition of ``Major stationary source or major 
source or major facility'' that is contained in subpart 201-2.1(b)(21).
    With respect to 6 NYCRR Part 231, EPA is taking final action to 
approve all of Part 231 into the New York SIP except certain revisions 
to Part 231 that may be applicable to GHG emissions, effective March 5, 
2009, specifically, (1) the PSD permitting threshold provisions to the 
extent that those provisions may require permits for sources of 
greenhouse gas (GHG) emissions that equal or exceed the 100/250 tons 
per year (tpy) GHG levels but are less than the thresholds identified 
in EPA's final Tailoring Rule at 75 FR 31514, 31606 (June 3, 2010); and 
(2) the PSD significance level provisions of New York's rule to the 
extent that those provisions may treat as significant GHG emissions 
increases that are less than the thresholds identified in the final 
Tailoring Rule. Note that by this final action, EPA is removing and 
reserving 40 CFR 52.1689 which had incorporated the Federal PSD 
regulations at 40 CFR 52.21 into New York's applicable implementation 
plan.

III. What are EPA's responses to comments to EPA's proposal?

    EPA received only one comment on this proposal. The commenter 
congratulates the agency on the policy decision it has made. The 
commenter also states that when EPA promulgated the NSR Reform Rule, it 
indicated that it would not approve State plans that did not include 
the ``reforms,'' and stated that it would issue a Federal 
Implementation Plan imposing the reforms on any State that did not 
adopt them. By contrast, the commenter notes that the proposed rule 
would approve New York's program, even though it diverges in important 
respects from the NSR Reform package. The commenter further notes that 
EPA does so on the grounds that the New York program is more stringent 
than Federal requirements. The commenter indicates that this is quite a 
change from the position of the previous Administration. The commenter 
further states that he does not know if EPA has previously taken the 
position it does here. If not, the commenter urges EPA to provide 
discussion of the rationales for this change in stance. Otherwise, the 
commenter warns, the change might well be struck down by the courts as 
unexplained, and therefore arbitrary and capricious.

Response

    Except in specific cases of preemption unrelated to this action, 
the Clean Air Act does not preclude States from adopting or enforcing a 
more stringent regulation than Federal requirements. 42 U.S.C. 7416. 
New York State has adopted the reforms of EPA's 2002 NSR reform rules. 
In general, the New York State revisions to the rule are similar to the 
Federal NSR Reform Rules except for a few specific provisions. EPA is 
required to approve State SIP revisions that are at least as stringent 
as the Federal rules even if they contain provisions that differ in 
minor ways. These specific provisions, addressed in New York's Revised 
Regulatory Impact Statement and discussed in detail in our proposal 
(see 75 FR 43892, (July 27, 2010), retain and, in fact, may exceed the 
environmental benefits of the NSR program.

IV. What action is EPA taking?

    EPA is taking a final action to grant a partial approval to 
revisions to the New York State Implementation Plan (SIP) submitted by 
the New York State Department of Environmental Conservation on March 3, 
2009.

[[Page 70142]]

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the State, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by January 18, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 29, 2010.
George Pavlou,
Acting Regional Administrator, Region 2.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

0
2. Section 52.1670 is amended by adding new paragraph (c)(115) to read 
as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (c) * * *
* * * * *
    (115) On March 3, 2009, the New York State Department of 
Environmental Conservation (NYSDEC), submitted to EPA proposed 
revisions to the State Implementation Plan concerning Prevention of 
Significant Deterioration (PSD) and nonattainment new source review.
    (i) Incorporation by reference:
    (A) Letter dated March 3, 2009, from Assistant Commissioner J. 
Jared Snyder, NYSDEC, to George Pavlou, Acting Regional Administrator, 
EPA Region 2, submitting the revisions for Title 6 of the New York Code 
of Rules and Regulations, Part 200, ``General Provisions,'' sections 
200.1 and 200.9, Table 1 (Part 231 references); Subpart 201-2.1(b)(21); 
and Part 231, which identifies an effective date of March 5, 2009.
    (B) Title 6 of the New York Code of Rules and Regulations, Part 
200, ``General Provisions,'' sections 200.1 and 200.9, Table 1 (Part 
231 references), with an effective date of March 5, 2009, Subpart 201-
2.1(b)(21), definition of ``Major stationary source or major source or 
major facility,'' with an effective date of March 5, 2009, and Part 
231, ``New Source Review for New and Modified Facilities,'' with an 
effective date of March 5, 2009.

0
3. Section 52.1679, is amended by revising the table entries under 
Title 6, for Part 200 and Part 231, and adding new entry Subpart 201-
2.1(b)(21) following Part 201, ``Permits and certificates'' in 
numerical order to read as follows:


Sec.  52.1679  EPA-approved New York State regulations.

----------------------------------------------------------------------------------------------------------------
                                        State effective
       New York State regulation              date       Latest EPA approval date             Comments
----------------------------------------------------------------------------------------------------------------
                                                     Title 6
----------------------------------------------------------------------------------------------------------------
Part 200, General Provisions, Section           3/5/09   11/17/10, [Insert FR      The word odor is removed from
 200.1.                                                   page citation].           the Subpart 200.1(d)
                                                                                    definition of ``air
                                                                                    contaminant or air
                                                                                    pollutant.''

[[Page 70143]]

 
                                        ...............                            Redesignation of non-
                                                                                    attainment areas to
                                                                                    attainment areas (200.1(av))
                                                                                    does not relieve a source
                                                                                    from compliance with
                                                                                    previously applicable
                                                                                    requirements as per letter
                                                                                    of Nov. 13, 1981 from H.
                                                                                    Hovey, NYSDEC.
                                        ...............                            Changes in definitions are
                                                                                    acceptable to EPA unless a
                                                                                    previously approved
                                                                                    definition is necessary for
                                                                                    implementation of an
                                                                                    existing SIP regulation.
                                        ...............                            EPA is including the
                                                                                    definition of ``Federally
                                                                                    enforceable'' with the
                                                                                    understanding that (1) the
                                                                                    definition applies to
                                                                                    provisions of a Title V
                                                                                    permit that are correctly
                                                                                    identified as Federally
                                                                                    enforceable, and (2) a
                                                                                    source accepts operating
                                                                                    limits and conditions to
                                                                                    lower its potential to emit
                                                                                    to become a minor source,
                                                                                    not to ``avoid'' applicable
                                                                                    requirements.
Section 200.9, Table 1 (Part 231                3/5/09   11/17/10, [Insert FR      EPA is approving reference
 references).                                             page citation].           documents that are not
                                                                                    already Federally
                                                                                    enforceable.
Sections 200.6, 200.7 and 200.9.......         2/25/00   4/22/08, 73 FR 21548....  EPA is approving reference
                                                                                    documents that are not
                                                                                    already Federally
                                                                                    enforceable.
 
                                                  * * * * * * *
Subpart 201-2.1(b)(21), Definitions...          3/5/09   11/17/10, [Insert FR      EPA is including the
                                                          page citation].           definition of ``Major
                                                                                    stationary source or major
                                                                                    source or major facility''
                                                                                    with the understanding that
                                                                                    the definition applies only
                                                                                    to provisions of Part 231.
 
                                                  * * * * * * *
Part 231, New Source Review for New             3/5/09   11/17/10, [Insert FR      Partial approval; no action
 and Modified Facilities.                                 page citation].           taken on provisions that may
                                                                                    require PSD permits for
                                                                                    sources of greenhouse gas
                                                                                    (GHG) emissions with
                                                                                    emissions below the
                                                                                    thresholds identified in
                                                                                    EPA's final PSD and Title V
                                                                                    GHG Tailoring Rule at 75 FR
                                                                                    31514, 31606 (June 3, 2010).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

Sec.  52.1689  [Reserved]

0
4. Section 52.1689 is removed and reserved.

[FR Doc. 2010-28964 Filed 11-16-10; 8:45 am]
BILLING CODE 6560-50-P