[Federal Register Volume 77, Number 167 (Tuesday, August 28, 2012)]
[Rules and Regulations]
[Pages 51915-51930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21056]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2012-0296; FRL-9720-6]


Approval and Promulgation of Air Quality Implementation Plans; 
State of New York; Regional Haze State Implementation Plan and Federal 
Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action on the Regional Haze State Implementation Plan (SIP) submitted 
by the State of New York. EPA is approving seventeen source-specific 
SIP revisions containing permits for Best Available Retrofit 
Technology, revisions for Title 6 of the New York Codes, Rules and 
Regulations, Part 249, ``Best Available Retrofit Technology (BART)'' 
and section 19-0325 of the New York Environmental Conservation Law 
which regulates the sulfur content of fuel oil. These revisions to the 
SIP addressing regional haze were submitted by the State of New York on 
March 15, 2010, and supplemented on August 2, 2010, April 16, 2012 and 
July 2, 2012. These SIP revisions were submitted to address Clean Air 
Act requirements and EPA's rules for states to prevent and remedy 
future and existing anthropogenic impairment of visibility in mandatory 
Class I areas through a regional haze program. Although New York State 
addressed most of the issues identified in EPA's proposal, EPA is 
promulgating a Federal Implementation Plan to address two sources where 
EPA is disapproving New York's BART determinations.

DATES: This rule is effective on September 27, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2012-0296. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., 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 through 
www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region II 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: Robert F. Kelly, Air Planning Section, 
Air Programs Branch, EPA Region 2, 290 Broadway, New York, New York 
10007-1866. The telephone number is (212) 637-4249. Mr. Kelly can also 
be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What action is EPA taking?
II. What additional SIP revisions did New York submit consistent 
with EPA's proposal?
    A. SIP Revisions for BART Determinations
    B. SIP Revision for 6 NYCRR, Part 249, ``Best Available Retrofit 
Technology (BART)''
    C. SIP Revision for New York's Low Sulfur Fuel Oil Strategy
III. What is contained in EPA's federal implementation plan for New 
York's regional haze program?
IV. What comments did EPA receive on its proposal and what were 
EPA's responses?
V. What are EPA's conclusions?
VI. Statutory and Executive Order Reviews

    Throughout this document, wherever ``Agency,'' ``we,'' ``us,'' or 
``our'' is used, we mean the EPA.

I. What action is EPA taking?

    EPA is approving New York's State Implementation Plan (SIP) 
revisions addressing regional haze submitted on March 15, 2010, and 
supplemented on August 2, 2010, April 16, 2012, and July 2, 2012. EPA 
is supplementing New York's SIP with a Federal Implementation Plan 
(FIP) for three units at two BART sources where EPA is disapproving 
these BART determinations. The following paragraphs summarize each of 
EPA's actions.
    EPA is approving aspects of New York's Regional Haze SIP revision 
as follows:
     The measures enacted by New York are shown to produce 
emission reductions that are sufficient to meet New York's share of the 
emission reductions needed to meet reasonable progress goals (found at 
40 CFR 51.308(d)(1)) at Class I areas affected by New York's emissions.
     New York's Long Term Strategy, since New York submitted 
final approvable permit modifications for all facilities on April 16, 
2012 and July 2, 2012 (except for the Roseton and Danskammer Generating 
Stations), in a timely manner with the level of control in EPA's April 
25, 2012 proposal. EPA's FIP contains BART determinations and emission 
limits for the Roseton and Danskammer Generating Stations.
     New York's SIP revision consisting of Title 6 of the New 
York Codes, Rules and Regulations (6 NYCRR), Part 249, ``Best Available 
Retrofit Technology (BART).''
     New York's SIP revision consisting of section 19-0325 of 
the New York Environmental Conservation Law which regulates the sulfur 
content of fuel oil.
    EPA is approving the following facility BART determinations and

[[Page 51916]]

emissions limits since New York submitted final permit modifications to 
EPA as SIP revisions on April 16, 2012 and July 2, 2012, and the 
revisions match the terms of our April 25, 2012 proposal published in 
the Federal Register (77 FR 24794):

 ALCOA Massena Operations (West Plant)
 Arthur Kill Generating Station [NRG]
 Bowline Generating Station [GenOn]
 Con Edison 59th Street Station
 EF Barrett Power Station [National Grid (NG)]
 Holcim (US) Inc--Catskill Plant
 International Paper Ticonderoga Mill
 Kodak Operations at Eastman Business Park
 Lafarge Building Materials
 Lehigh Northeast Cement
 Northport Power Station [NG]
 Oswego Harbor Power [NRG]
 Owens-Corning Insulating Systems Feura Bush
 Ravenswood Generating Station [TC]
 Ravenswood Steam Plant [Con Edison]
 Roseton Generating Station--Dynegy (NOX and PM 
limits only)
 Samuel A Carlson Generating Station [Jamestown Board of Public 
Utilities (BPU)]
 Syracuse Energy Corporation [GDF Suez]

    EPA is disapproving the following BART determinations:
     New York's Sulfur Dioxide (SO2) BART 
determinations and emissions limits for Units 1 and 2 of Dynegy's 
Roseton Generating Station.
     New York's SO2, Nitrogen Oxide (NOX) 
and Particulate Matter (PM) BART determinations and emissions limits 
for Unit 4 of Dynegy's Danskammer Generating Station.
    EPA is promulgating a FIP to address the BART determinations 
identified above in our partial disapproval of New York's Regional Haze 
SIP.
    EPA is taking this action pursuant to section 110 of the Clean Air 
Act (the Act or CAA). For additional details on EPA's analysis and 
findings, the reader is referred to the April 25, 2012 proposal (77 FR 
24794) and the May 9, 2012 Notice of Data Availability (77 FR 27162). 
New York's entire Regional Haze SIP revisions and the full text of the 
public comments are included in the Docket (EPA-R02-OAR-2012-0296) and 
available at www.regulations.gov.

II. What additional SIP revisions did New York submit consistent with 
EPA's proposal?

    On April 25, 2012, EPA proposed to take action on a revision to the 
SIP addressing regional haze submitted by New York. In that proposal, 
EPA proposed to address through a FIP certain requirements not 
addressed in New York's regional haze SIP submission or, alternatively, 
to approve a substantively identical SIP revision by New York, should 
the state timely submit such a revision. In two letters, both dated 
April 16, 2012, New York submitted the additional materials relevant to 
our proposed action on its regional haze SIP submission, including 
proposed SIP revisions addressing the requirements for BART for a 
number of sources and addressing the New York State Law that regulates 
the sulfur content of fuel oil. Subsequently, on May 9, 2012 (77 FR 
27162), EPA published a notice of data availability to notify the 
public that New York submitted additional information to supplement New 
York's Regional Haze SIP.
    As discussed in the May 9, 2012 notice, EPA was aware that New York 
intended to submit additional information relevant to the action EPA 
was proposing on New York's Regional Haze SIP. EPA, therefore, 
discussed in its proposal the possible actions EPA would take should 
this information be timely submitted. EPA included in the record the 
draft information that New York was in the process of finalizing and 
submitting as part of its SIP revision. EPA evaluated this draft 
information as part of the Agency's proposed action on New York's 
Regional Haze SIP. EPA's May 9, 2012 notice indicated that EPA's final 
action will be based on the proposed rulemaking, the additional 
information identified in the notice of data availability, and an 
assessment of any public comments that may be received. On July 2, 
2012, New York submitted the remaining adopted permits implementing 
BART which were not included in the April 16, 2012 submission.

A. SIP Revisions for BART Determinations

    New York's April 16, 2012 SIP revisions requested that EPA take 
action on proposed SIP revisions from New York in parallel with the 
state's processing of the following draft Title V permits that the 
state intended to submit as SIP revisions to meet the BART requirement: 
Bowline Generating Station, Danskammer Generating Station, Kodak 
Operations at Eastman Business Park, Oswego Harbor Power, Owens-Corning 
Insulating Systems, and Syracuse Energy Corporation.
    New York's April 16, 2012 SIP revisions also requested processing 
of the following adopted Title V permits implementing BART for the 
following facilities: ALCOA Massena Operations (West Plant), Arthur 
Kill Generating Station, Con Edison 59th Street Station, EF Barrett 
Power Station, Holcim (US) Inc--Catskill Plant, International Paper 
Ticonderoga Mill, Lafarge Building Materials, Lehigh Northeast Cement, 
Northport Power Station, Ravenswood Generating Station, Ravenswood 
Steam Plant, Roseton Generating Station \1\, and Samuel A Carlson 
Generating Station.
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    \1\ Notwithstanding the submission of the permit, EPA is 
promulgating a FIP for SO2 BART for Roseton as explained 
in this action.
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    Lastly, New York submitted a letter dated July 2, 2012 containing 
SIP revisions for the remaining adopted Title V permits implementing 
BART for five of the following facilities previously discussed in New 
York's April 16, 2012 letter: Bowline Generating Station, Kodak 
Operations at Eastman Business Park, Oswego Harbor Power, Owens-Corning 
Insulating Systems, and Syracuse Energy Corporation. As further 
discussed in the Response to Comments below, New York also submitted an 
updated permit for Lehigh Northeast Cement.
    New York did not make any substantive changes to the source 
specific Title V permits to incorporate BART other than those discussed 
in EPA's April 25, 2012 proposal and May 9, 2012 notice or as discussed 
in the Response to Comments below. Since the SIP revisions match the 
terms of our proposed FIP, and the SIP revisions have been adopted by 
New York and submitted formally to EPA for incorporation into the SIP, 
EPA is approving the following facility BART determinations and 
emissions limits: ALCOA Massena Operations (West Plant), Arthur Kill 
Generating Station, Bowline Generating Station, Con Edison 59th Street 
Station, EF Barrett Power Station, Holcim (US) Inc--Catskill Plant, 
International Paper Ticonderoga Mill, Kodak Operations at Eastman 
Business Park, Lafarge Building Materials, Lehigh Northeast Cement, 
Northport Power Station, Oswego Harbor Power, Owens-Corning Insulating 
Systems, Ravenswood Generating Station, Ravenswood Steam Plant, Roseton 
Generating Station (NOX and PM limits only as contained in 
the adopted Title V permit), Samuel A Carlson Generating Station, and 
Syracuse Energy Corporation.

B. SIP Revision for 6 NYCRR, Part 249, ``Best Available Retrofit 
Technology (BART)''

    New York promulgated Part 249 to require BART eligible facilities 
to

[[Page 51917]]

perform an analysis of potential controls for each visibility-impairing 
pollutant. EPA evaluated New York's general BART rule submittal for 
consistency with the CAA and EPA's regulations, including public notice 
and hearing requirements, and determined that the rule met these 
requirements. EPA is approving New York's Part 249 as part of the SIP.

C. SIP Revision for New York's Low Sulfur Fuel Oil Strategy

    New York's April 16, 2012 SIP revisions request that EPA include in 
New York's Regional Haze SIP the New York State legislation regulating 
the sulfur content of fuel oil, Bill Number S1145C, which amends the 
New York Environmental Conservation Law to include a new section 19-
0325, effective July 15, 2010. EPA's May 9, 2012 notice discussed New 
York's SIP revision request and EPA's proposed approval of this 
request.
    Major SO2 emission reductions are obtained as a result 
of the legislation being implemented. These reductions are occurring in 
2012, well before the 2016 ``ask'' by MANE-VU \2\. EPA proposed to 
determine that New York's low sulfur fuel oil strategy in combination 
with the other planned reductions will provide the necessary reductions 
from New York for other Class I areas to meet their respective 
Reasonable Progress Goals. Please refer to the April 25, 2012 proposal 
for additional information regarding New York's Low Sulfur Fuel Oil 
Strategy. In addition, existing provisions of 6 NYCRR, Subpart 225-1, 
``Fuel Composition and Use--Sulfur Limitations,'' are incorporated in 
the current federally approved New York SIP, and Subpart 225-1 contains 
provisions regarding enforcement and compliance, emissions and fuel 
monitoring, reporting, recordkeeping, sampling and analysis. EPA is 
approving New York's request to incorporate section 19-0325 of New 
York's Environmental Conservation Law as part of the SIP. As we noted 
in our proposal, New York's section 19-0325, sulfur in fuel rule, does 
not completely fulfill the sulfur in fuel requirements MANE-VU modeled 
to show progress toward reducing haze. EPA is approving New York's 
submittal of its sulfur in fuel law as it helps meet its progress 
requirements. We describe later how New York meets its share toward 
making the regional haze progress goal without the full program.
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    \2\ MANE-VU is the Mid-Atlantic/North East Visibility Union, a 
regional planning organization, comprising Maine, New Hampshire, 
Vermont, Massachusetts, Rhode Island, Connecticut, New York, New 
Jersey, Pennsylvania, Maryland, the District of Columbia, the 
Penobscot Nation, and the St. Regis Mohawk Tribe.
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III. What is contained in EPA's federal implementation plan for New 
York's regional haze program?

    As discussed in EPA's April 25, 2012 proposal, in the event New 
York did not submit a SIP revision with final permit modifications for 
all BART sources, which match the terms of our proposed FIP, EPA 
proposed to publish a final rulemaking with a FIP for those BART 
sources. While New York's revised SIP covered most of the units 
addressed in EPA's proposal, it did not include final BART permit 
modifications consistent with our proposed FIP for certain of the units 
at Dynegy's Roseton and Danskammer Generating Stations. Therefore EPA 
is disapproving those portions of the SIP and promulgating a FIP 
addressing the SO2 BART requirements and setting emissions 
limits for Units 1 and 2 of Dynegy's Roseton Generating Station, and 
addressing the SO2, NOX and PM BART requirements 
and setting emissions limits for Unit 4 of Dynegy's Danskammer 
Generating Station. New York did submit a SIP revision with final BART 
permit modifications consistent with EPA's proposed FIP with respect to 
NOX and PM for Units 1 and 2 at Dynegy's Roseton Generating 
Station. EPA therefore is not adopting a FIP for the NOX and 
PM BART determinations for Roseton Units 1 and 2.
    The final FIP includes the following elements:
     NOX BART determination and an emission limit 
for Danskammer Generating Station Unit 4 of 0.12 pounds per million 
British thermal units (lb/MMBtu), to be met on a 24-hour average during 
the ozone season (May through September) \3\ and a 30-day rolling 
average the rest of the year, and a requirement that the owners/
operators comply with this NOX BART limit by July 1, 2014.
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    \3\ Note the averaging times for the FIP are modeled on New 
York's applicable SIP in order to coordinate the FIP with other 
existing New York limitations.
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     SO2 BART determination and an emission limit 
for Danskammer Generating Station Unit 4 of 0.09 lb/MMBtu, to be met on 
a 24-hour average, and a requirement that the owners/operators comply 
with this SO2 BART limit by July 1, 2014.
     PM BART determination and an emission limit for 
Danskammer Generating Station Unit 4 of 0.06 lb/MMBtu, to be met on a 
one-hour average, and a requirement that the owners/operators comply 
with this PM BART limit by July 1, 2014.
     SO2 BART determination and an emission limit 
for Roseton Generating Station Unit 1 and Unit 2 of 0.55 lb/MMBtu, to 
be met on a 24-hour average, and a requirement that the owners/
operators comply with this SO2 BART limit by January 1, 
2014.
     Monitoring, record-keeping, and reporting requirements for 
the above three units to ensure compliance with these emission 
limitations.
    EPA's April 25, 2012 proposal contained proposed regulatory 
language for Sec.  52.1686 of title 40 of the Code of Federal 
Regulations (CFR) for the purpose of adding new provisions containing 
EPA's FIP for Regional Haze. EPA notes that since New York submitted 
SIP revisions to address most of EPA's proposed FIP, EPA is finalizing 
only the regulatory language in section 51.1686 that covers EPA's FIP 
for the Roseton and Danskammer Generating Stations.
    We encourage New York at any time to submit a SIP revision to 
incorporate provisions that match the terms of our FIP, or relevant 
portion thereof. If EPA were to approve such a SIP revision, after 
public notice and comment, the SIP approved provisions could replace 
the FIP provisions.

IV. What comments did EPA receive on its proposal and what were EPA's 
responses?

    EPA received several comments from the following parties in 
response to our April 25, 2012 proposal and May 9, 2012 notice of data 
availability: ALCOA Massena Operations (ALCOA), Dynegy Northeast 
Generation, Inc. (Dynegy), Earthjustice on behalf of the National Parks 
Conservation Association and Sierra Club (Earthjustice), GenOn Bowline, 
LLC (Bowline), Lehigh Northeast Cement Group (Lehigh), New York State 
Department of Environmental Conservation (New York), and the United 
States Forest Service (US Forest Service). A summary of the comments 
and EPA's responses are provided below.

BART Comments--BART Permit Modifications

    Comment: New York commented that EPA should update the number of 
BART permits that have been issued in final form by New York.
    Response: We agree and we have taken the permits into account. In 
section II. of this action--``What Additional SIP revisions did New 
York Submit Consistent with EPA's Proposal?'' EPA discusses those final 
BART permits issued by New York.

[[Page 51918]]

    Comment: New York commented it will not be finalizing revisions to 
permits for the Roseton and Danskammer Generating Stations to address 
EPA's proposed emission limits prior to EPA's deadline for a final FIP.
    Response: EPA's April 25, 2012 proposal contained BART emission 
limits for Roseton and Danskammer Generating Stations which differed 
from the BART limits identified by New York for Roseton and proposed 
for Danskammer. In section III. of this action--``What is Contained in 
EPA's Federal Implementation Plan for New York's Regional Haze 
Program?'' EPA discusses the final FIP for the Roseton and Danskammer 
Generating Stations.
    Comment: New York provided several comments regarding EPA's 
proposed regulatory language for section 52.1686 of title 40 of the CFR 
and how the monitoring requirements and other provisions should be 
revised to better reflect the monitoring requirements that are 
characteristic for the different types of emissions sources. These 
include electric generating units, large industrial boilers and other 
types of source categories.
    Response: As noted above, since New York submitted SIP revisions to 
address EPA's proposed FIP, EPA is finalizing the regulatory language 
in section 51.1686 accordingly. Therefore, the regulatory language in 
section 51.1686 contains provisions to only cover EPA's FIP for the 
Roseton and Danskammer Generating Stations. These changes to section 
51.1686 address New York's comments.
    Comment: ALCOA commented that the monitoring, recordkeeping, and 
reporting requirements which EPA proposed in section 52.1686 for the 
proposed FIP were inappropriate for a primary aluminum production 
facility. ALCOA stated EPA should either approve the New York BART SIP 
requirements for the facility, or adopt the monitoring, recordkeeping 
and reporting requirements in New York's BART permit verbatim into the 
final FIP.
    Response: Following our proposed rule, New York adopted the final 
Title V permit for the ALCOA Massena Operations (West Plant) facility 
implementing BART. New York's permit included the appropriate 
monitoring, recordkeeping and reporting requirements and the state 
formally submitted the BART permit as a SIP revision to EPA. EPA is 
approving the New York BART SIP requirements for the ALCOA Massena 
Operations (West Plant) facility.
    Comment: Dynegy objected to any permit condition which would 
require the Danskammer or Roseton Units to burn a particular fuel or 
switch fuel forms.
    Response: EPA agrees and is not adopting any such conditions. As 
indicated in the April 25, 2012 proposal, EPA has determined that these 
emission limits can be reasonably met with any of the fuels and/or 
combination of fuels evaluated for this BART determination and 
available to the plant.
    Comment: Bowline commented that as a result of a clerical error 
unrelated to EPA's rulemaking, the draft Title V permit referred to by 
EPA in the April 25, 2012 proposal for New York's Regional Haze SIP was 
not the same version of the draft Title V permit that New York provided 
to Bowline and did not accurately reflect the BART requirements 
proposed to be imposed on the Bowline Units. More specifically, Bowline 
presented the correct NOX BART emission limits and permit 
conditions in the comment letter to EPA. Bowline requested EPA to 
revise the SIP approval or, if necessary, the FIP, to reflect the 
correct Title V permit requirements for the Bowline Units which were 
arrived at in New York's BART Determination.
    Response: EPA acknowledges that the draft Title V permit for 
Bowline included with the April 25, 2012 proposal was not the correct 
version of the draft Title V permit developed by New York for Bowline. 
After further inspection of the files contained in the Docket, and the 
additional information presented to EPA by Bowline and New York, EPA 
confirmed that the other documents used as the basis for EPA's April 
25, 2012 proposal, with the exception of the draft Title V permit, were 
correct and acceptable for the purpose of proposing a BART 
determination. The clerical error made at the state-level of the BART 
permit modification, did not change the underlying technical BART 
determination analysis, and New York's February 15, 2012 Environmental 
News Bulletin contained the correct BART determination and permit 
conditions that were noticed for public review by the state. Upon 
further review, EPA agrees with Bowline and New York that our April 25, 
2012 proposal presented NOX BART emission limits that were 
different from the limits and permit conditions which were available 
for public review at the state-level, and which New York ultimately 
adopted for the Bowline Units.
    EPA's April 25, 2012 proposal indicated NOX emissions 
from Bowline Units 1 and 2 would be limited to 0.15 lb/MMBtu on a 24-
hour average during the ozone season and a 30-day rolling average 
during the non-ozone season, with compliance by January 1, 2014. 
Bowline and New York provided further documentation to EPA that the 
correct BART determination and permit conditions that were noticed for 
public review by the state in the February 15, 2012 Environmental News 
Bulletin, were as follows:
     By July 1, 2014, NOX emission from Units 1 and 
2 are limited to 0.15 lb/MMBtu when burning natural gas, measured on a 
24-hour average during the ozone season and a 30-day rolling average 
during the non-ozone season.
     By July 1, 2014, NOX emission from Units 1 and 
2 are limited to 0.25 lb/MMBtu when burning oil, measured on a 24-hour 
average during the ozone season and a 30-day rolling average during the 
non-ozone season
     By July 1, 2014, oil-firing is limited to 3.1 million 
barrels during the ozone season and 4.6 million barrels during the non-
ozone season.
     The limit for oil and gas dual fuel firing periods will be 
heat input weighted between 0.15 lb/MMBtu and 0.25 lb/MMBtu.
    The correct NOX BART determination requires an emission 
limit of 0.15 lb/MMBtu when burning natural gas and 0.25 lb/MMBtu when 
burning oil. These are the limits that reflect Bowline's implementation 
of BART. In response to the clerical error, EPA has determined that 
these emission limits are acceptable for BART, and are based on New 
York's BART determination for Bowline and merely are reflective of the 
limits that Bowline can achieve when implementing BART for different 
types of fuels. EPA notes these limits are also similar to other 
NOX BART emission limits EPA is approving in this action for 
other similar peaking units that are used only a small period of time 
each year. These limits are based on a detailed technical analysis 
which considers circumstances specific to Bowline, consistent with 
EPA's BART Guidelines.
    With respect to the BART compliance date, EPA's April 25, 2012 
proposal indicated a compliance date of January 1, 2014, consistent 
with the compliance date contained in New York's BART regulation Part 
249. New York issued final BART permit modifications for the Bowline 
Units requiring compliance by July 1, 2014. While the July 1, 2014 
compliance date is six months later than the January 1, 2014 compliance 
date in New York's Part 249, EPA has determined that the July 1, 2014 
compliance date is still consistent with EPA's BART Guidance for 
compliance as expeditiously as possible but no later

[[Page 51919]]

than five years from EPA's approval of the state's Regional Haze SIP.
    EPA notes that the previous versions of the BART Permit 
modifications indicated these emission limits do not apply during 
start-up and shut-down periods. However, EPA informed New York that the 
BART emission limits must apply at all times. Therefore, the final BART 
determinations and final BART Title V permit modification submitted to 
EPA as part of the July 2, 2012 SIP revisions do not contain any 
exclusions for start-up and shut-down periods. Lastly, EPA did not 
receive any other comments related to Bowline's BART determinations or 
permit limits, except from Bowline itself. In response to Bowline's 
comments and additional supporting analyses and documentation provided 
by Bowline and New York, EPA is therefore approving Bowline's BART 
determinations and BART emission limit permit conditions presented 
above.
    Comment: New York and Lehigh both commented that the Title V permit 
referred to by EPA in the April 25, 2012 proposal for New York's 
Regional Haze SIP was being modified. New York and Lehigh requested 
that the requirement to install a baghouse on the rotary kiln be 
removed from the permit since the requirement to install a baghouse was 
not intended to meet BART, but to meet the federal Portland Cement 
Maximum Achievable Control Technology (MACT) which EPA is currently 
reevaluating to determine the deadlines for compliance. Lehigh and New 
York also requested the permit include a new SO2 limit of 
1.50 lb/MMBtu to supplement the fuel sulfur limits EPA proposed as 
BART.
    Response: EPA has determined that the amendments to Lehigh's Title 
V permit are acceptable. The permit amendments do not change the PM 
BART emission limit of 0.30 lb/ton feed proposed by EPA in the April 
25, 2012 proposal for the rotary kiln. The permit amendments also 
provide a new SO2 BART emission limit of 1.50 lb/MMBtu that 
will supplement the existing limits. Compliance with the new 
SO2 limit will be determined by annual stack tests. These 
revisions to the permit are consistent with the underlying technical 
BART determination analysis. New York issued a new public notice of the 
permit revisions for public review, and then adopted the permit 
modifications.
    EPA did not receive any other comments related to Lehigh's BART 
determinations or permit limits, except from Lehigh and New York. In 
response to these comments on EPA's April 25, 2012 proposal, and 
additional supporting analyses and documentation provided by Lehigh and 
New York, EPA is therefore approving Lehigh's BART determinations and 
BART emission limit permit conditions presented above since the revised 
Title V permit is consistent with the terms of our proposed FIP, has 
been adopted by New York, and submitted formally to EPA for 
incorporation into the SIP.

BART Comments--Emission Limits

    Comment: U.S. Forest Service supported EPA's proposals to require a 
0.55 lb/MMBtu SO2 emission limit for Roseton Units 1 and 2, 
0.09 lb/MMBtu SO2 emission limit for Danskammer Unit 4, and 
0.20 lb/MMBtu NOX emission limit for Kodak Boiler 42 if the 
Boiler is repowered with natural gas.
    Response: EPA acknowledges the support for the proposed BART 
emission limits. EPA is adopting these limits.
    Comment: Dynegy pointed out that the operators of the Danskammer 
and Roseton Generating Stations are currently the subject of Chapter 11 
bankruptcy proceedings, and therefore not in a position to select any 
of the SO2 BART FIP emission limits proposed by EPA.
    Response: EPA has an obligation to either approve New York's 
Regional Haze SIP or promulgate a FIP that establishes BART for the 
Danskammer and Roseton Generating Stations, regardless of other legal 
proceedings that may involve the Danskammer and Roseton Generating 
Stations. EPA is adopting SO2 BART FIP emission limits for 
the Danskammer and Roseton Generating Stations.

BART Comments--Specific to Dynegy BART Determinations

    Comment: Earthjustice urged EPA to finalize the proposed 
disapproval of the SO2 BART determination for Danskammer 
Unit 4 and endorsed EPA's reasons for proposing to disapprove New 
York's BART analysis.
    Response: EPA is finalizing our proposed disapproval of the 
SO2 BART determination for Danskammer and is adopting 
SO2 BART FIP emission limits for the facility.
    Comment: Earthjustice commented that New York improperly allowed 
Dynegy to conduct the BART analysis and select its emission limitation.
    Response: It is common practice for the facility to do the 
technical analysis in order to determine BART for eligible sources, 
submit that information to the state and then for the state to review 
and adopt or modify the BART determination. In fact, with respect to 
the Regional Haze program, New York adopted the regulation 6 NYCRR, 
Part 249, ``Best Available Retrofit Technology (BART)'' to require BART 
eligible facilities to perform an analysis of potential controls for 
each visibility-impairing pollutant. Congress crafted the Clean Air Act 
to provide for states to take the lead in developing implementation 
plans but balanced that decision by requiring EPA to review the plans 
to determine whether a SIP meets the requirements of the Act. In 
undertaking such a review, EPA does not usurp a state's authority but 
ensures that such authority is reasonably exercised. BART 
determinations are the responsibility of the states, which have the 
freedom to determine the weight and significance of the statutorily 
required five-factors in a BART determination. EPA then reviews a 
state's determination as included in its regional haze plan. With 
respect to New York's Regional Haze plan, EPA determined that New York 
addressed the five factors for the BART determinations sufficiently to 
allow EPA to conclude that the state's BART determinations were 
reasonable, for all BART-eligible facilities except for Roseton and 
Danskammer facilities. In the case of the Roseton and Danskammer 
facilities, where EPA's review of New York's determination resulted in 
a different conclusion, EPA developed a FIP.
    Comment: Earthjustice commented New York's failure to select a 
specific technology as BART for either its NOX or 
SO2 determination for Danskammer results in an arbitrary 
emission limit that cannot be considered BART. Earthjustice argued that 
New York and EPA do not have the statutory authority under Section 
169A(b)(2) of the Act to set an emission limitation for NOX 
and SO2 without first designating a particular control 
technology as BART.
    Response: EPA's BART Guidelines make clear that processes and 
practices, or a combination thereof, may be designated as BART. See 40 
CFR part 51 App. Y, section IV.D. The applicable regional haze 
regulations and EPA's BART Guidelines define BART as ``an emission 
limitation based on the degree of reduction achievable through the 
application of the best system of continuous emission reduction.'' \4\ 
The application of practices and processes to the operation of a 
facility can be considered the ``best system.''
---------------------------------------------------------------------------

    \4\ See 40 CFR 51.301 (defining ``BART''); 40 CFR part 51 App. 
Y.
---------------------------------------------------------------------------

    New York's proposed BART determination for the Danskammer facility 
listed a combination of policies and practices as a control option for 
both SO2 and NOX. To accomplish a side-by-side 
comparison with other

[[Page 51920]]

control options, it calculated an emission limitation that could be 
achieved by employing those processes and practices. All control 
options were reviewed using the procedure set forth in EPA's BART 
Guidelines, and New York reached a determination that the combination 
of processes and practices was BART. It was not necessary for New York 
to set its emission limitations with reference to a specific 
technology. The chosen emission limitations for both NOX and 
SO2 were set with reference to the application of a 
combination of practices and processes. This was done in accordance 
with the top-down BART determination analysis contained in EPA's BART 
Guidelines.\5\ Although EPA objected to the emission limitation set for 
SO2, it did not object to New York's proposed determination 
that a combination of practices and processes was BART for the 
Danskammer facility. Earthjustice's comments do not accurately reflect 
the BART analysis conducted by New York or by EPA.
---------------------------------------------------------------------------

    \5\ 40 CFR part 51 App. Y.
---------------------------------------------------------------------------

    Comment: Earthjustice said EPA must impose a more stringent 
SO2 BART FIP emission limit of 0.06 lb/MMBtu instead of 
EPA's proposed 0.09 lb/MMBtu because EPA failed to consider all 
available control technologies, including a wet scrubber or circulating 
dry scrubber. Earthjustice also commented that the proposed emission 
limit is not associated with any specific control technology.
    Response: EPA disagrees that the BART analysis failed to consider 
all available control technologies and EPA disagrees that the limit is 
not associated with a control technology. In Dynegy's submission to New 
York, it determined that BART was lowering Unit 4's current 
SO2 permit limit from 1.10 lbs/MMBtu to 0.50 lbs/MMBtu. This 
limit was based on the facility putting in place a combination of 
processes/practices, including: (1) Use of alternative coal, (2) co-
firing with natural gas, and (3) installation of post combustion 
controls. Dynegy identified this particular limit as a control option 
based on an engineering study that identified and evaluated the 
available SO2 control options. This was done in accordance 
with Step One of the BART Guidelines, which requires the state to 
identify all possible control options that could be used as BART. 40 
CFR part 51 App. Y. Dynegy's consultants used a fuel cost table and 
calculations contained in an attached excel worksheet titled ``Fuel 
Costs'' to determine the emission limitation that could be achieved by 
applying the above practices/processes as BART. Those calculations make 
clear that the estimated emission limitation for SO2 was set 
using factors based on the use of alternative fuels, co-firing with 
natural gas, and installing post combustion controls.
    The engineering study identified other control options, including 
Flue Gas Desulfurization (``FGD'') options with Lime Based Spray Dryer; 
Circulating Dry Scrubber and Wet Limestone; options for Dry Sorbent 
Injection of minerals such as Trona; combustion of alternative coals; 
100% combustion of natural gas; and co-firing natural gas. In 
accordance with Step Two of the BART Guidelines, the facility evaluated 
the technical feasibility of each control option, concluding that all 
options were technically feasible for the Danskammer facility. It then 
evaluated each control option's cost effectiveness, conducted impact 
analyses on cost of compliance, energy impacts, and nonair quality 
environmental impacts, and modeled selected control option's visibility 
impact using the CALPUFF modeling program; all in accordance with Steps 
Two through Four of the BART Guidelines. 40 CFR part 51 App. Y.
    As required by New York's BART regulation, Part 249, the facility 
conducted a side-by-side comparison and the facility showed that the 
use of an emission limitation based on the application of the above 
practices/processes was BART for the Danskammer facility.\6\ Dynegy's 
analysis showed that an emission limit of 0.50 lbs/MMBtu, accomplished 
through the use of a combination of processes/practices, would achieve 
a greater impact on regional visibility than the remaining control 
options. Dynegy then selected the 0.50 lbs/MMBtu as the facility's 
SO2 emission limitation. New York reviewed Dynegy's analysis 
and determined that BART was lowering the SO2 emission limit 
from 1.1 lb/MMBtu to 0.50 lb/MMBtu by implementing the combination of 
processes/practices discussed above.
---------------------------------------------------------------------------

    \6\ See Regulations.gov for EPA-R02-OAR-2012-0296, file marked 
``final permits,'' attachment identified as ``2012-12-02 Dynegy 
Final BART Analysis--Redacted Copy.''
---------------------------------------------------------------------------

    However, EPA's own analysis of the combination of processes/
practices identified by Dynegy and the proposed determination by New 
York as BART showed that a lower emission limitation than that 
contained in the state's plan is achievable with this technology. EPA 
conducted its own evaluation and set a lower estimated emission 
limitation, 0.09 lb/MMBtu, as a control option. It concluded that 
``these same control option strategies can achieve a more stringent 
SO2 emission limit than the 0.5 lb/MMBtu limit, on a more 
cost-effective basis, and therefore result in more visibility 
improvement.'' 77 FR 24792, 24813. The 0.09 lb/MMBtu limit was 
calculated using the fuel costs contained in Dynegy's own fuel costs 
worksheets. EPA then used Dynegy's own side-by-side comparisons to 
demonstrate that its proposed 0.09 lb/MMBtu limit was BART for the 
Danskammer facility.
    Since EPA's proposed BART emission limitation was set with 
reference to processes/practices evaluated using the BART Guidelines, 
and since processes/practices can be considered as the ``best system of 
emission reduction'' pursuant to those same guidelines, EPA's proposed 
emission limitation is not arbitrary. 40 CFR part 51 App. Y. Therefore 
EPA is finalizing the SO2 BART FIP emission limit of 0.09 
lb/MMBtu for Danskammer.
    Comment: Earthjustice commented there is no way to justify EPA's 
proposed option to approve New York's 0.50 lb/MMBtu SO2 
limit for Danskammer given the ready availability of cost-effective 
controls.
    Response: EPA's proposed option that allowed New York to submit 
additional information to support its higher estimated emission 
limitation was not improper. New York conducted its BART analysis in 
accordance with BART Guidelines, but failed to properly support its 
emission limitation for SO2 based on the analysis of 
Dynegy's own fuel cost worksheet. At the time of EPA's April 25, 2012 
proposal, New York had not yet issued a final BART permit, so there 
remained the possibility that additional information could be provided 
to further support New York's proposed BART determination. If New York 
had demonstrated that its 0.50 lb/MMBtu limit was accurate by 
submitting additional material to EPA, it may have been appropriate for 
EPA to approve New York's proposed BART determination. Regardless, 
neither New York nor Dynegy submitted additional information specific 
to the 0.50 lb/MMBtu SO2 limit. Consequently, EPA is 
finalizing the SO2 BART FIP emission limit of 0.09 lb/MMBtu 
for Danskammer.
    Comment: Earthjustice commented that other nonair quality 
environmental impacts and additional power requirements are an improper 
basis for rejecting wet scrubber or circulating dry scrubber control or 
Selective Catalytic Reduction (SCR) as BART.
    Response: Although Dynegy appears to reject certain pollution 
controls on the basis of nonair quality

[[Page 51921]]

environmental impacts and additional energy requirements, EPA went back 
and reanalyzed Dynegy's analysis. Dynegy did a full five factor 
analysis and considered the cost effectiveness of controls and the 
visibility improvement of possible controls. EPA concluded that the 
controls resulting from Dynegy's analysis were not BART, and adopted 
much more stringent SO2 emissions limits and determined the 
NOX emissions limits based on visibility. In EPA's 
determination of BART, we did not disqualify any SO2 or 
NOX control strategies because of any energy or nonair 
quality environmental impacts.
    Comment: Earthjustice provided extensive comments to support its 
position that EPA must disapprove New York's NOX BART 
determination for Dynegy's Danskammer Unit 4. Earthjustice contends 
that New York's and EPA's proposed NOX emission limit of 
0.12 lb/MMBtu is unattached to any selected BART technology and 
therefore must be rejected. Earthjustice comments that BART for this 
facility should be the installation of SCR with a NOX 
emission limit not higher than 0.05 lb/MMBtu (on a 30-day rolling 
average). Earthjustice states SCR is cost-effective, feasible, and will 
result in significant visibility benefits.
    Response: EPA disagrees with Earthjustice's conclusion that the 
proposed NOX emission limit of 0.12 lb/MMBtu and associated 
controls cannot be considered BART. First, Dynegy and New York 
evaluated nineteen different controls for BART (including SCR) at 
Danskammer and, after conducting the 5-factor analysis as required by 
section 169A(g)(2) of the Act, New York's proposed determination that 
BART consists of optimization of existing Level II Low NOX 
Burners emission controls, co-firing with natural gas, installation of 
post-combustion controls, use of alternative coals, or any combination 
thereof to achieve a NOX emission limit of 0.12 lb/MMBtu. 
Dynegy's proposal committed to meeting a specific emission limit with a 
combination of specific controls and therefore Earthjustice's 
contention that this selection of BART technology is arbitrary is 
without merit. BART is an emission limit (See 40 CFR 51.301) and 
Dynegy's BART analysis commits to lowering the NOX emission 
limit from 0.42 lb/MMBtu to 0.12 lb/MMBtu (24-hour average during the 
ozone season, 30-day average during the non-ozone season) based upon 
the use of a combination of specific possible controls.
    Secondly, Earthjustice comments and provides detailed technical 
reasons as to why SCR should be considered BART for this facility with 
a NOX emission limit not higher than 0.05 lb/MMBtu on a 30-
day rolling average. EPA agrees with Earthjustice that SCR technology 
is cost effective for the Danskammer facility and it has been 
demonstrated at numerous coal fired utilities that achieved an emission 
limit of this magnitude. However, as explained in the following 
paragraphs, EPA has concluded that the implementation of Earthjustice's 
recommendation of SCR technology with an emission limit of 0.05 lb/
MMBtu provides only minimal visibility improvement (8th high cumulative 
at the seven Class I areas) when compared to EPA's proposed FIP that 
BART is an emission limit of 0.12 lb/MMBtu when implementing the 
combination of controls described above.
    Dynegy evaluated SCR plus flue gas recirculation (FGR) using a 
control efficiency of 91.0% that is equivalent to a NOX 
emission limit of 0.038 lb/MMBtu (note that in EPA's April 25, 2012 
proposal, there was a calculation error for this control option and the 
correct emission limit for NOX associated with SCR + FGR is 
0.038 lb/MMBtu, not 0.38 lb/MMBtu). As required by section 169A(g)(2) 
of the Act, one of the five factors to be evaluated for BART is the 
visibility impact of the emissions from a particular control technology 
being considered for BART. Dynegy evaluated the visibility benefits at 
the seven Class I areas impacted by the facility and as noted in Table 
6 of EPA's April 25, 2012 proposed rule for New York (77 FR at 24814), 
the total visibility improvement across the seven Class I areas from 
SCR + FGR is only better by 0.08 deciviews as compared to Dynegy's 
proposed combination of controls associated with a BART emission limit 
of 0.12 lb/MMBtu.\7\ As pointed out by Earthjustice, the maximum 
cumulative visibility improvement is significantly better by 0.534 dv 
(2.477 dv versus 1.943 dv) for SCR + FGR compared to Dynegy's proposed 
BART emission limit of 0.12 lb/MMBtu. However, EPA's Guidelines 
document calls for the use of the 98th percentile (essentially the 8th 
highest day) rather than the maximum modeled daily impact. These 
Guidelines further state that while ``the use of the 98th percentile of 
modeled visibility values would appear to exclude roughly 7 days per 
year from consideration, in our judgment, this approach will 
effectively capture the sources that contribute to visibility 
impairment in a Class I area, while minimizing the likelihood that the 
highest modeled visibility impacts might be caused by unusual 
meteorology or conservative assumptions in the model.'' See 70 FR 
39104, 39121 (July 6, 2005). Accordingly, EPA used the 98th percentile 
(8th high) visibility to compare the visibility impacts of different 
control technologies for the Danskammer facility.
---------------------------------------------------------------------------

    \7\ Difference between 0.651 deciviews and 0.569 deciviews is 
0.08 deciviews, 8th high.
---------------------------------------------------------------------------

    Furthermore, Dynegy's visibility analysis included a summary of the 
number of days that exceed 1.0 dv, 0.5 dv and 0.1 dv for each 
NOX control strategy at each of the seven impacted Class I 
areas. This visibility analysis shows only a small improvement in days 
exceeding the three respective dv thresholds for the SCR + FGR case 
compared to Dynegy's proposed combination of BART controls with an 
emission limit of 0.12 lb/MMBtu. The cumulative number of days 
exceeding each of the dv thresholds for the SCR + FGR (with 
NOX emissions of 0.038 lb/mm BTU) and Dynegy's proposed 
combination of controls (with NOX emissions of 0.12 lb/
MMBtu) is summarized in the following table:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Difference in the number of days when the visibility impact exceeds 1.0, 0.5, and 0.1 deciviews for
                                                                          each Class I area for two different control strategies
                                                --------------------------------------------------------------------------------------------------------
                                                            1.0 deciview                       0.5 deciview                       0.1 deciview
                                                --------------------------------------------------------------------------------------------------------
                  Class I area                                         Difference                         Difference                         Difference
                                                                         in days                            in days                            in days
                                                  SCR +    0.12 lb/      between     SCR +    0.12 lb/      between     SCR +    0.12 lb/      between
                                                   FGR    MMBtu NOX      control      FGR    MMBtu NOX      control      FGR    MMBtu NOX      control
                                                                       strategies                         strategies                         strategies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lye Brook, VT..................................       6            6            0       15           16            1       59           62            3

[[Page 51922]]

 
Brigantine, NJ.................................       1            1            0        7            7            0       56           59            3
Acadia Nat'l Park, ME..........................       0            0            0        3            4            1       50           52            2
Presidential Range, NH.........................       0            1            1        4            4            0       38           43            5
Great Gulf, NH.................................       0            0            0        4            4            0       31           37            6
Otter Creek, WV................................       0            0            0        0            0            0        8            8            0
Dolly Sods, WV.................................       0            0            0        0            0            0       10           11            1
                                                --------------------------------------------------------------------------------------------------------
Total days.....................................       7            8            1       33           35            2      252          272           20
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Based upon the two visibility analyses described above, EPA 
concludes that Earthjustice's recommended BART technology, i.e., SCR, 
with an emission limit of 0.05 lb/MMBtu, would not be expected to 
provide any significant improvement in visibility at the seven Class I 
areas over Dynegy's proposed BART implementation of a combination of 
specific possible controls with an emission limit of 0.12 lb/MMBtu. 
Therefore, EPA concludes that NOX BART for Danskammer Unit 4 
is unchanged from our April 25, 2012 proposal, i.e., an emission limit 
of 0.12 lb/MMBtu by the optimization of existing Level II Low 
NOX Burners emission controls, co-firing with natural gas, 
installation of post-combustion controls, use of alternative coals, or 
any combination thereof.
    Comment: Earthjustice took issue with EPA's inclusion in the Docket 
of the redacted version of Dynegy's BART analysis and suggested that 
EPA relies on, but fails to review or provide critical costs and energy 
impacts and failed to obtain or withheld critical projected capacity 
factor information.
    Response: In establishing the Agency's determination of BART for 
Danskammer Unit 4, EPA relied on the same information from Dynegy's 
BART analysis that was available to the public. EPA disagrees that we 
failed to review, provide, or obtain information relevant to our review 
of the Dynegy BART analysis. EPA's review and analysis focused on 
Danskammer's potential to emit and did not involve the need for 
information regarding Dynegy's future, projected utilization rates for 
the Danskammer facility. EPA determined this information was not 
relevant to this rulemaking.
    Comment: Earthjustice commented that EPA failed to establish a 
historical emissions baseline and that EPA should have corrected 
Dynegy's use of a ten year useful life of pollution control.
    Response: EPA agrees that Dynegy did not establish a historical 
emissions baseline or use a reasonable lifetime for pollution control 
equipment, but the Agency does not agree that these errors affected 
EPA's analysis and determination as to appropriate BART limits for the 
Dynegy facilities. EPA used Dynegy's potential to emit rather than its 
historical emissions, which resulted in a more conservative approach 
that increased the estimated cost-effectiveness of controls. As for 
Earthjustice's comment regarding the ten year useful life of control 
equipment, Dynegy used a 10-year useful life for the Danskammer 
emission unit itself. While we agree that a 10-year remaining useful 
life is not an appropriate assumption unless there is an enforceable 
commitment to shut down, our review of this alleged discrepancy between 
a 10-year or a 30-year useful life of the facility did not change our 
conclusions, since the controls are cost effective either way. EPA did 
not discuss the remaining useful life in the April 25, 2012 proposal 
because the controls are cost-effective.
    Comment: Dynegy supported EPA's proposed compliance date of July 1, 
2014 for the Danskammer Unit 4 BART emission limits, EPA's proposed 
NOX and PM BART determinations for the Danskammer and 
Roseton Units and the form (lbs/MMBtu) of the proposed emission limits 
for the Danskammer and Roseton units.
    Response: EPA acknowledges the support for the proposed compliance 
date, the proposed BART determinations and the proposed form of the 
BART emission limits. In this action, EPA is finalizing these limits.
    Comment: New York indicated revisions are being developed to New 
York's fuel sulfur limitations under Part 225-1 which will likely 
supersede EPA's SO2 BART limit for the Roseton Generating 
Station, soon after EPA's January 1, 2014 compliance date.
    Response: EPA fully supports New York's development and adoption of 
these regulations.
    Comment: New York disagreed with EPA's determination in the April 
25, 2012 proposal that Dynegy incorrectly analyzed visibility impacts 
at only the maximally-impacted federal Class I area, rather than at all 
impacted Class I areas. Earthjustice agreed with EPA's determination to 
consider the cumulative visibility impacts at all impacted Class I 
areas.
    Response: In reviewing New York's BART determinations for Dynegy's 
Roseton and Danskammer Generating Stations, EPA took into account the 
visibility benefits of requiring controls by considering the 
improvements at both the most impacted Class I area as well as the 
improvements at all impacted Class I areas and Dynegy's own conclusions 
regarding the impacts on visibility from the controls under 
consideration. With regard to New York's comment that consideration of 
the BART Guidelines do not require the consideration of visibility 
benefits at all Class I areas, the state cited to text indicating that 
consideration of visibility impacts at all impacted Class I areas 
``might be unwarranted.'' This language in the BART Guidelines is 
clearly meant to provide a common sense approach to streamlining a 
complex and difficult modeling exercise where ``an analysis may add a 
significant resource burden to a State.'' See 70 FR 39126. While the 
BART Guidelines indicate that a detailed analysis of the visibility 
impacts at each area in a cluster of Class I areas may not be 
necessary, this is not because the visibility impacts at Class I areas 
other than the most impacted are irrelevant but rather because the 
visibility benefits at the most impacted Class I area alone may be 
sufficient to justify the selection

[[Page 51923]]

of the most stringent control technology as BART. Where, as here, the 
benefits of controls have been modeled for a number of surrounding 
areas and consideration of these benefits is useful in determining the 
appropriate level of controls, EPA does not agree that these benefits 
should be ignored.
    EPA concludes that it appropriately took into account the 
visibility impacts across all seven of the impacted Class I areas in 
deciding to adopt more stringent BART limits. There are many large 
sources of pollutants that reduce visibility and impact several Class I 
areas in the northeastern United States. EPA has included, in our 
review of the multi-factor analysis, the impact these major sources 
have on more than one Class I area. The smaller impacts from these 
major sources combine with impacts from other major sources in the 
northeast to have important impacts on visibility in these protected 
areas. While EPA is primarily concerned with impacts at the Class I 
area nearest each major source, EPA encourages cost-effective control 
strategies that improve visibility across many Class I areas. 
Reductions in visibility-impairing pollutants from a major facility, 
with reduced impacts from similarly large sources in other areas and 
other states, will go a long way toward improving visibility in these 
areas.
    Comment: Earthjustice commented that EPA offers no explanation for 
ruling out a hybrid SCR/SNCR control option and a FGR+SCR control 
option as BART even though the maximum cumulative visibility 
improvement across seven affected Class I areas is shown to be 2.244 dv 
and 2.477 dv, respectively. Earthjustice questions how EPA arrived at 
this decision for NOX when it arrived at a different 
decision for SO2.
    Response: The visibility improvement cited to by Earthjustice is 
based on the maximum anticipated visibility improvements at the seven 
Class I areas impacted by the Danskammer facility. EPA did not base its 
decision to approve New York's BART determinations on these maximum 
cumulative visibility improvement values; rather EPA focused on the 8th 
high (98th percentile) visibility impacts predicted by the visibility 
modeling in evaluating a particular control option. In this case, the 
visibility benefits based on consideration of the 8th high visibility 
impacts for the hybrid SCR/SNCR and FGR+SCR options are far less than 
2.0 deciviews. The visibility impacts measured cumulatively across the 
seven impacted Class I areas based on the 8th high number are 0.689 dv 
for SCR/SNCR and 0.651 dv for FGR+SCR. EPA concluded that these control 
options provide minimal visibility improvement when compared to the 
BART level of control of 0.12 lbs of NOX/MMBtu, with a 8th 
high cumulative visibility improvement of 0.569 dv. As for 
SO2, in contrast, the visibility improvement associated with 
the BART limit set by EPA based on the 8th high impacts is 2.174 dv of 
improvement, as measured across the seven Class I areas.
    Comment: Earthjustice commented that EPA did not establish any 
significance thresholds for costs or for visibility improvement in 
making BART determinations.
    Response: EPA's BART guidelines in the BART Rule do not require EPA 
to develop a specific threshold, but rather to evaluate each BART 
determination on a case-by-case basis for each source. All five factors 
must be compared to determine the level of control that is BART on a 
case-by-case basis.
    Comment: Earthjustice commented that EPA failed to conduct a BART 
analysis for particulate matter and that BART Guidelines (40 CFR part 
51, Appendix Y, section IV.C) require BART limits to be at least as 
stringent as maximum available control technology (MACT), such as EPA's 
Mercury and Air Toxics Standards.
    Response: The comments received do not convince us that our PM BART 
determination for Danskammer is unreasonable. EPA reviewed Dynegy's 
BART analysis and New York's proposed BART determination and we agreed 
that it represents BART. The existing electrostatic precipitator 
control is 99.98% effective in reducing PM emissions. We consider this 
level of control to be BART for the Danskammer facility. Neither EPA 
nor a state is required to set BART based on the limits in a MACT 
standard. MACT standards are established by EPA for reasons that are 
much different than the reasons for the limits established in Regional 
Haze SIPs. Further, that section of the BART Guidelines the comment 
refers to was not meant to require states to take into account MACT 
requirements in determining BART, but rather to provide states with the 
option to streamline the BART analysis for sources subject to the MACT 
standards by relying on the MACT standards for purposes of BART. In 
addition, EPA notes that compliance with the particulate matter 
emission limit in the FIP is based on a one-hour averaging time period, 
while the MACT is based on a 30 day rolling average. It is accordingly 
difficult to compare the two limits.
    In summary, EPA determined the existing electrostatic precipitator 
control represents the BART level of control for PM for this particular 
facility.
    Comment: Earthjustice stated that BART determinations must consider 
filterable PM10, PM2.5 and condensable PM. 
Earthjustice stated that EPA should have considered more stringent PM 
emission limits accepted as BART or as best available control 
technology known as BACT or even the maximum achievable control 
technology known as MACT. Earthjustice requested EPA to disapprove New 
York's PM BART determination and adopt a FIP that establishes BART 
limits for filterable PM10, PM2.5 and condensable 
PM.
    Response: EPA disagrees that the PM BART limits should be 
disapproved. The existing electrostatic precipitator control on the 
facility and the emission limit from the BART determination are 
effective in reducing filterable particulates. Condensable particulates 
will be reduced as a result of the reductions in SO2 and 
NOX emissions at the facility. Separate emission limits for 
each form of particulates are not required for BART. EPA also disagrees 
that the FIP's BART limits should be consistent with BACT or MACT. 
BART, BACT and MACT are all specific statutorily defined approaches to 
establishing emissions limitations for sources under different CAA 
programs.

Reasonable Progress Goals Comments

    Comment: Earthjustice commented that EPA's conclusion that New York 
will achieve its reasonable progress goals is based on an unidentified 
analysis performed by MANE-VU, resulting in the public's inability to 
assess the accuracy or reasonableness of MANE-VU's calculations and 
EPA's statements related to MANE-VU's analysis. Earthjustice 
recommended that EPA reject its conclusion that New York would achieve 
its reasonable progress goals since the analysis was not available for 
public review.
    Response: EPA disagrees that the MANE-VU analysis was not available 
for public review and EPA disagrees we should reject our conclusion 
that New York would achieve its reasonable progress goals. MANE-VU's 
analysis titled Documentation of 2018 Emissions from Electric 
Generating Units in the Eastern United States for MANE-VU's Regional 
Haze Modeling, Revised Final Draft, April 2008 \8\ was originally

[[Page 51924]]

available for public review during the New York rulemaking process for 
its Regional Haze SIP revision, as well as during many of the other 
MANE-VU states' rulemaking processes. As EPA included all of the 
documents associated with New York's Regional Haze SIP revision in the 
Docket, this MANE-VU document was also available for public review as 
part of EPA's April 25, 2012 proposal and included in the Docket for 
this rulemaking as Appendix W in New York's Regional Haze SIP Submittal 
documents.
---------------------------------------------------------------------------

    \8\ The report was finalized as Documentation of 2018 Emissions 
from Electric Generating Units in the Eastern United States for 
MANE-VU's Regional Haze Modeling Final Report, 16 August 2009, with 
no changes that affect this analysis. It is available at http://www.marama.org/technical-center/emissions-inventory/ei-improvement-projects/electricy-generating-units.
---------------------------------------------------------------------------

    Table 9 of Appendix W is the final MANE-VU emission inventory which 
was modeled to show that implementing the MANE-VU measures would 
improve visibility at MANE-VU's Class I areas sufficiently to meet the 
progress goals for 2018 for these areas. For the final emission 
inventory described in Appendix W, MANE-VU increased the emissions of 
SO2 from power plants to account for the effects of EPA's 
Clean Air Interstate Rule (CAIR) program.\9\ Applying the CAIR program 
to the New York emission inventory increases emissions by 23,142 tons 
per year of SO2 from the previous MANE-VU inventory that 
represented New York's application of the controls agreed to by the 
MANE-VU states. Since New York is not using EPA's CAIR or subsequent 
transport rules for BART emission controls on sources in New York, the 
final MANE-VU emission inventory overestimates the projected emissions 
for New York by 23,142 tons per year of SO2.
---------------------------------------------------------------------------

    \9\ The MANE-VU document referenced in the previous footnote 
explains in Section 5.5 on page 29: `` * * * MANE-VU planners 
recognized that CAIR allows emissions trading, and that reductions 
at one unit could offset increases at another unit within the CAIR 
region. Because most states do not restrict trading, MANE-VU decided 
that emissions should be increased to represent the implementation 
of the strategy for the 167 stacks within the limits of the CAIR 
program. Therefore, NESCAUM increased the emissions from states 
subject to the CAIR cap and trade program. For MANE-VU, 75,809 tons 
were added back, leaving total regional emissions from the MANE-VU 
region greater than the original Inter-RPO IPM-based estimate but 
consistent with state projections.''
---------------------------------------------------------------------------

    New York's existing sulfur in fuel rule does not cover all of the 
types of fuel oil included in the program agreed to by the MANE-VU 
states. New York estimates that there is a difference of 17,669 tons 
per year of SO2 between the program New York has in place 
now and full adoption of the sulfur in fuel measure agreed to by the 
MANE-VU states. The 17,669 tons per year of SO2 reductions 
that New York would have if it adopted the entire MANE-VU sulfur in 
fuel rule is less than the excess 23,142 tons per year of 
SO2 projected in the MANE-VU final modeling inventory. These 
23,142 tons will not be emitted since New York is not using CAIR for 
its Regional Haze Plan. Therefore, EPA can approve this portion of New 
York's Regional Haze Plan because New York's adopted emission 
reductions meet New York's portion of the emission reductions needed to 
reach the progress goals set for MANE-VU's Class I areas.
    Comment: New York disagreed with EPA's discussion of the sulfur 
reductions achieved by New York's low sulfur fuel strategy and the 
timing of those reductions. New York commented that sulfur reductions 
are not required to be implemented by the time EPA takes final action 
on New York's Regional Haze SIP, but rather by the 2018 Reasonable 
Progress Goal deadline. New York stated it is in the process of 
developing regulations to expand the low sulfur fuel oil program to 
achieve reductions before 2018.
    Response: EPA agrees sulfur reductions are not required to be 
implemented by the time EPA takes final action on New York's Regional 
Haze SIP, but rather as soon as reasonable and, at the latest, by the 
2018 Reasonable Progress Goal deadline. However, EPA can only act on 
the measures that New York has adopted when it submitted its Regional 
Haze Plan, and cannot act on measures that may be adopted or enacted 
later. New York needs to adopt all of the measures to be used in its 
Regional Haze SIP.
    New York indicates it is in the process of developing regulations 
to expand the low sulfur fuel oil program to achieve reductions before 
2018. EPA fully supports New York's timely development and adoption of 
these regulations.

General Comments

    Comment: US Forest Service complimented EPA and New York on the 
work to date on the Regional Haze program and the BART determinations 
and supported EPA's BART proposals.
    Response: EPA agrees New York has successfully addressed the 
consultation process of the Regional Haze Program with the Federal Land 
Managers.
    Comment: New York commented that, at the time of its letter, the 
fact that forty states do not have approved Regional Haze SIPs 
highlights the difficulties for states to complete their SIPs under the 
schedules set by EPA.
    Response: EPA acknowledges that the deadlines established by 
Congress in the CAA for the regional haze program have been 
challenging, but notes that EPA has now either proposed or taken final 
action on full regional haze programs for all but seven states.
    Comment: Earthjustice commented that EPA must affirm New York's 
decision to apply BART and not rely on the Cross State Air Pollution 
Rule.
    Response: EPA can affirm that New York conducted case-by-case BART 
reviews and did not rely on the Cross State Air Pollution Rule based on 
the fact that New York adopted 6 NYCRR Part 249, a regulation requiring 
all facilities to conduct and submit a BART analysis to the state, and 
because New York submitted to EPA source-specific SIP revisions for 18 
facilities to implement BART.
    Comment: Earthjustice commented that with respect to New York, the 
Cross State Air Pollution Rule (CSAPR) will not achieve greater 
progress toward national visibility goals.
    Response: Since New York is not relying on CSAPR, this comment is 
beyond the scope of this rulemaking.

V. What are EPA's conclusions?

    EPA has evaluated the proposed revisions to the SIP submitted by 
the State of New York that address regional haze for the first planning 
period from 2008 through 2018. EPA is partially approving and partially 
disapproving the revisions to the SIP, which address the Regional Haze 
requirements of the Clean Air Act for the first implementation period. 
This approval includes the Reasonable Progress portion of the plan, New 
York's source-specific SIP revisions for implementation of BART for 17 
BART-subject sources, 6 NYCRR Part 249, ``Best Available Retrofit 
Technology (BART),'' effective May 6, 2010, and section 19-0325 of the 
New York Environmental Conservation Law, effective July 15, 2010, which 
regulates the sulfur content of fuel oil.
    EPA is finalizing amendments to 40 CFR 52.1670(d) ``EPA-Approved 
New York Source-Specific Provisions'' to incorporate those sources with 
new emission limitations or requirements that resulted from the BART 
determinations that are not part of the applicable SIP.
    EPA is promulgating a partial FIP to address the deficiencies in 
the plan resulting from our partial disapproval of New York's Regional 
Haze SIP. Specifically, EPA's FIP contains BART determinations and 
emission limits for the Roseton and Danskammer Generating Stations.
    We have fully considered all significant comments on our proposal, 
and, except as noted in sections II, III and IV above, have concluded 
that no other changes from our proposal are warranted. Our action is 
based on an evaluation of New York's SIP submittals

[[Page 51925]]

and our FIP relative to the regional haze requirements at 40 CFR 
51.300-51.309 and Clean Air Act sections 169A and 169B. All general SIP 
requirements contained in section 110 of the Act, other provisions of 
the Act, and our regulations applicable to this action were also 
evaluated. The purpose of this action is to ensure compliance with 
these requirements. Our authority for action on New York's SIP 
submittals is based on section 110(k) of the Act. Our authority to 
promulgate our partial FIP is based on section 110(c) of the Act.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action will promulgate emission requirements for two 
facilities and is therefore not a rule of general applicability. This 
type of action is exempt from review under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Under the Paperwork Reduction Act, a ``collection of information'' is 
defined as a requirement for ``answers to * * * identical reporting or 
recordkeeping requirements imposed on ten or more persons * * *'' 44 
U.S.C. 3502(3)(A). Because the FIP applies to just two facilities, the 
Paperwork Reduction Act does not apply. See 5 CFR 1320(c).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
The OMB control numbers for our regulations in 40 CFR are listed in 40 
CFR Part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this action on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The Regional 
Haze FIP that EPA is finalizing for purposes of the regional haze 
program consists of imposing Federal controls to meet the BART 
requirement for NOX, SO2 and PM2.5 
from one facility and emissions of SO2 from another facility 
in New York. The net result of these two FIP actions is that EPA is 
promulgating emission controls on selected units at only two sources. 
The sources in question are each large electric generating plants that 
are not owned by small entities, and therefore are not small entities. 
The partial approval of the SIP merely approves state law as meeting 
Federal requirements and imposes no additional requirements beyond 
those imposed by state law. See Mid-Tex Electric Cooperative, Inc. v. 
FERC, 773 F.2d 327 (D.C. Cir. 1985).

D. Unfunded Mandates Reform Act (UMRA)

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
It is a rule of particular applicability that affects only two 
facilities in the State of New York. Thus, this rule is not subject to 
the requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule only 
applies to two facilities in the State of New York.

E. Executive Order 13132 Federalism

    This action does not have federalism implications. It will 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. This action addresses the State not 
fully meeting its obligation to adopt a SIP that meets the regional 
haze requirements under the CAA. Thus, Executive Order 13132 does not 
apply to this action. Although section 6 of Executive Order 13132 does 
not apply to this action, EPA did consult with the state government in 
developing this action. A summary of the concerns raised during the 
comment period and EPA's response to those concerns is provided in 
section IV of this preamble.

F. Executive Order 13175

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
action EPA is taking neither imposes substantial direct compliance 
costs on tribal governments, nor preempts tribal law. It will not have 
substantial direct effects on tribal government. Thus, Executive Order 
13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it implements specific standards established by Congress 
in statutes. However, to the extent this rule will limit emissions, the 
rule will have a beneficial effect on children's health by reducing air 
pollution.

[[Page 51926]]

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Today's action 
does not require the public to perform activities conducive to the use 
of voluntary consensus standards. Therefore, EPA did not consider the 
use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994), establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    We have determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because it increases the level of environmental 
protection for all affected populations without having any 
disproportionately high and adverse human health or environmental 
effects on any population, including any minority or low-income 
population. This rule limits emissions of NOX, 
SO2 and PM2.5 from one facility and emissions 
SO2 from another facility in New York. The partial approval 
of the SIP merely approves state law as meeting Federal requirements 
and imposes no additional requirements beyond those imposed by state 
law.

K. Congressional Review Act

    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. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S 804(3). EPA is not required to 
submit a rule report regarding today's action under section 801 because 
this is a rule of particular applicability.

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 29, 2012. Pursuant to Approval and 
Promulgation of Air Quality Implementation Plans; State of New York; 
Regional Haze State Implementation Plan and Federal Implementation Plan 
[EPA-R02-OAR-2012-0296] CAA section 307(d)(1)(B), this action is 
subject to the requirements of CAA section 307(d) as it promulgates a 
FIP under CAA section 110(c). 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 CAA section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 16, 2012.
Lisa P. Jackson,
Administrator.
    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. 7401-7671q.

Subpart HH--New York

0
2. Section 52.1670 is amended by:
0
a. In paragraph (c), revising the table heading and adding a new entry 
for Title 6, Part 249, in numeric order and adding new subheading 
``Environmental Conservation Law'' and table entry at end of table (c); 
and
0
b. In paragraph (d) by adding new entries to the end of table
0
c. In paragraph (e) by adding new entries to the end of table.
    The additions and revisions reads as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved New York State Regulations and Laws
----------------------------------------------------------------------------------------------------------------
                                               State
       New York State  regulation         effective date   Latest EPA approval date            Comments
----------------------------------------------------------------------------------------------------------------
Title 6:
 
                                                  * * * * * * *
Part 249, Best Available Retrofit                 5/6/10  8/28/12 [Insert page
 Technology (BART).                                        number where the document
                                                           begins].

[[Page 51927]]

 
 
                                                  * * * * * * *
Environmental Conservation Law
Section 19-0325.........................         7/15/10  8/28/12 [Insert page
                                                           number where the document
                                                           begins].
----------------------------------------------------------------------------------------------------------------

     (d) * * *

                                EPA-Approved New York Source-Specific Provisions
----------------------------------------------------------------------------------------------------------------
                                      Identifier/      State effective/
         Name of source             emission point       approval date     EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
ALCOA Massena Operations (West    Potline             Permit ID           8/28/12 [Insert     Part 249 BART.
 Plant).                           S[hyphen]00001,     6[hyphen]4058[hyp   page number where
                                   Baking furnace      hen]00003,          the document
                                   S[hyphen]00002,     effective 3/20/12.  begins].
                                   Package Boilers
                                   B[hyphen]00001.
Arthur Kill Generating Station,   Boiler 30.........  Permit ID           8/28/12 [Insert     Part 249 BART.
 NRG.                                                  2[hyphen]6403[hyp   page number where
                                                       hen]00014,          the document
                                                       effective 3/20/12.  begins].
Bowline Generating Station,       Boilers 1 and 2...  Permit Id 3-3922-   8/28/12 [Insert     Part 249 BART.
 GenOn.                                                00003, effective    page number where
                                                       6/28/12.            the document
                                                                           begins].
Con Edison 59th Street Station..  Steam Boilers 114   Permit Id 2-6202-   8/28/12 [Insert     Part 249 BART.
                                   and 115.            00032, Effective    page number where
                                                       3/20/12.            the document
                                                                           begins].
EF Barrett Power Station, NG....  Boiler 2..........  Permit Id 1-2820-   8/28/12 [Insert     Part 249 BART.
                                                       00553, effective    page number where
                                                       3/27/12.            the document
                                                                           begins].
International Paper Ticonderoga   Power Boiler and    Permit Id           8/28/12 [Insert     Part 249 BART.
 Mill.                             Recovery Furnace.   5[hyphen]1548[hyp   page number where
                                                       hen]00008,          the document
                                                       effective 3/19/12.  begins].
Kodak Operations at Eastman       Boilers 41, 42 and  Permit Id 8-2614-   8/28/12 [Insert     Part 249 BART.
 Business Park, Kodak.             43.                 00205, effective    page number where
                                                       5/25/12.            the document
                                                                           begins].
Lafarge Building Materials......  Kilns 1 and 2.....  Permit Id 4-0124-   8/28/12 [Insert     Condition 12-14.
                                                       00001 effective 7/  page number where
                                                       19/11.              the document
                                                                           begins].
Lehigh Northeast Cement, Lehigh   Kiln and Clinker    Permit Id 5-5205-   8/28/12 [Insert     Part 220 and Part
 Cement.                           cooler.             00013, effective    page number where   249 BART.
                                                       7/5/12.             the document
                                                                           begins].
Northport Power Station, NG.....  Boilers 1, 2, 3,    Permit Id 1-4726-   8/28/12 [Insert     Part 249 BART.
                                   and 4.              00130, effective    page number where
                                                       3/27/12.            the document
                                                                           begins].
Oswego Harbor Power, NRG........  Boilers 5 and 6...  Permit Id 7-3512-   8/28/12 [Insert     Part 249 BART.
                                                       00030, effective    page number where
                                                       5/16/12.            the document
                                                                           begins].
Owens-Corning Insulating Systems  EU2, EU3, EU12,     Permit Id 4-0122-   8/28/12 [Insert     Part 249 BART.
 Feura Bush, Owens Corning.        EU13, and EU14.     00004 effective 5/  page number where
                                                       18/12.              the document
                                                                           begins].
Ravenswood Generating Station,    Boilers 10, 20, 30  Permit Id 2-6304-   8/28/12 [Insert     Part 249 BART.
 TC.                                                   00024, effective    page number where
                                                       4/6/12.             the document
                                                                           begins].
Ravenswood Steam Plant, Con       Boiler 2..........  Permit Id 2-6304-   8/28/12 [Insert     Part 249 BART.
 Edison.                                               01378 effective 3/  page number where
                                                       20/12.              the document
                                                                           begins].
Roseton Generating Station--      Boilers 1 and 2...  Permit Id 3-3346-   8/28/12 [Insert     Excluding the SO2
 Dynegy.                                               00075 effective     page number where   BART emissions
                                                       11/02/11.           the document        limits for
                                                                           begins].            Boilers 1 and 2
                                                                                               and corresponding
                                                                                               monitoring,
                                                                                               recordkeeping,
                                                                                               and reporting
                                                                                               requirements,
                                                                                               which EPA
                                                                                               disapproved.
Samuel A Carlson Generating       Boiler 12.........  Permit Id 9-0608-   8/28/12 [Insert     Part 249 BART.
 Station, James town Board of                          00053 effective 2/  page number where
 Public Utilities.                                     8/12.               the document
                                                                           begins].

[[Page 51928]]

 
Syracuse Energy Corporation [GDF  Boiler 1..........  Permit Id 7-3132-   8/28/12 [Insert     Part 249 BART.
 Suez].                                                00052 effective 5/  page number where
                                                       24/12.              the document
                                                                           begins].
----------------------------------------------------------------------------------------------------------------

     (e) * * *

                       EPA-Approved New York Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                        Applicable
       Action/SIP  element            geographic or        New York      EPA approval date       Explanation
                                    nonattainment area  submittal date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Implementation Plan for Regional   Statewide..........         3/15/00  8/28/12 [Insert      The plan is
 Haze.                                                                   page number where    approved except
                                                                         the document         for the BART
                                                                         begins].             determinations for
                                                                                              Danskammer
                                                                                              Generating Station
                                                                                              Unit 4 and Roseton
                                                                                              Generating Station
                                                                                              Units 1 and 2. See
                                                                                              40 CFR 52.1686.
Regional Haze plan--Fuel Oil       Statewide..........         4/16/12  8/28/12 [Insert
 Sulfur Content.                                                         page number where
                                                                         the document
                                                                         begins].
Regional Haze Plan--BART Permit    Statewide..........         4/16/12  8/28/12 [Insert
 modifications.                                                          page number where
                                                                         the document
                                                                         begins].
Regional Haze Plan--BART Permit    Statewide..........          7/2/12  8/28/12 [Insert
 modifications.                                                          page number where
                                                                         the document
                                                                         begins].
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.1686 is added as follows:


Sec.  52.1686  Federal Implementation Plan for Regional Haze.

    (a) Applicability. This section applies to each owner and operator 
of the following electric generating units (EGUs) in the State of New 
York: Danskammer Generating Station, Unit 4; and Roseton Generating 
Station, Units 1 and 2;
    (b) Definitions. Terms not defined below shall have the meaning 
given them in the Clean Air Act or EPA's regulations implementing the 
Clean Air Act. For purposes of this section:
    Boiler operating day means a 24-hour period between 12 midnight and 
the following midnight during which any fuel is combusted at any time 
in the EGU, boiler or emission unit. It is not necessary for fuel to be 
combusted for the entire 24-hour period.
    Continuous emission monitoring system or CEMS means the equipment 
required by this section to sample, analyze, measure, and provide, by 
means of readings recorded at least once every 15 minutes (using an 
automated data acquisition and handling system (DAHS)), a permanent 
record of SO2, NOX, and PM emissions, other 
pollutant emissions, diluent, or stack gas volumetric flow rate.
    SO2 means sulfur dioxide.
    NOX means nitrogen oxides.
    PM means particulate matter
    Owner/operator means any person who owns, leases, operates, 
controls, or supervises an EGU or boiler identified in paragraph (a) of 
this section.
    Ozone Season means the time period from May 1 through September 30 
of each year.
    Unit means any of the EGUs or boilers identified in paragraph (a) 
of this section.
    (c) Emissions limitations--(1) The owners/operators subject to this 
section shall not emit or cause to be emitted SO2, 
NOX, and PM in excess of the following limitations, averaged 
over a rolling 30-day period unless otherwise indicated below:

----------------------------------------------------------------------------------------------------------------
                                                                        BART controls/limits
            Facilities                BART unit   --------------------------------------------------------------
                                                           NOX                  SO2                   PM
----------------------------------------------------------------------------------------------------------------
Danskammer Generating Station--                 4  0.12 lb/MMBtu 24 hr  0.09 lb/MMBtu 24 hr  0.06 lb/MMBtu 1 hr
 Dynegy.                                            avg ozone season,    avg Compliance 7/1/  avg Compliance 7/1/
                                                    30 day avg rest of   2014.                2014.
                                                    yr Compliance 7/1/
                                                    2014.
Roseton Generating Station--                1 & 2  ...................  0.55 lb/MMBtu 24 hr  ...................
 Dynegy.                                                                 avg.
----------------------------------------------------------------------------------------------------------------

     (2) These emission limitations shall apply at all times, including 
startups, shutdowns, emergencies, and malfunctions.
    (d) Compliance date. The owners and operators subject to this 
section shall comply with the emissions limitations

[[Page 51929]]

and other requirements of this section by January 1, 2014 unless 
otherwise indicated in paragraph (c) of this section.
    (e) Compliance determination using CEMS--(1) CEMS. At all times 
after the compliance date specified in paragraph (d) of this section, 
the owner/operator of each unit shall maintain, calibrate, and operate 
a CEMS, in full compliance with the requirements found at 40 CFR part 
75, to accurately measure SO2, NOX, and PM, 
diluent, and stack gas volumetric flow rate from each unit. The CEMS 
shall be used to determine compliance with the emission limitations in 
paragraph (c) of this section for each unit.
    (2) Method. (i) For any hour in which fuel is combusted in a unit, 
the owner/operator of each unit shall calculate the hourly average 
SO2, NOX, and PM concentration in lb/MMBtu at the 
CEMS in accordance with the requirements of 40 CFR part 75. At the end 
of each boiler operating day, the owner/operator shall calculate and 
record a new average emission rate, consistent with paragraph (c) 
averaging period, in lb/MMBtu from the arithmetic average of all valid 
hourly emission rates from the CEMS for the current boiler operating 
day.
    (ii) An hourly average SO2, NOX, or PM 
emission rate in lb/MMBtu is valid only if the minimum number of data 
points, as specified in 40 CFR part 75, is acquired by the 
SO2, NOX, or PM pollutant concentration monitor 
and the diluent monitor (O2 or CO2).
    (iii) Data reported to meet the requirements of this section shall 
not include data substituted using the missing data substitution 
procedures of subpart D of 40 CFR part 75, nor shall the data have been 
bias adjusted according to the procedures of 40 CFR part 75.
    (f) Compliance determination using fuel certification--The owner or 
operator of each affected facility subject to a federally enforceable 
requirement limiting the fuel sulfur content may use fuel supplier 
certification to demonstrate compliance. Records of fuel supplier 
certification, as described under paragraphs (f)(1), (2), (3), and (4) 
of this section, as applicable, shall be maintained and reports 
submitted as required under paragraph (h). In addition to records of 
fuel supplier certifications, the report shall include a certified 
statement signed by the owner or operator of the affected facility that 
the records of fuel supplier certifications submitted represent all of 
the fuel combusted during the reporting period.
    Fuel supplier certification shall include the following 
information:
    (1) For distillate oil:
    (i) The name of the oil supplier;
    (ii) A statement from the oil supplier that the oil complies with 
the specifications under the definition of distillate oil in Sec.  
60.41c; and
    (iii) The sulfur content or maximum sulfur content of the oil.
    (2) For residual oil:
    (i) The name of the oil supplier;
    (ii) The location of the oil when the sample was drawn for analysis 
to determine the sulfur content of the oil, specifically including 
whether the oil was sampled as delivered to the affected facility, or 
whether the sample was drawn from oil in storage at the oil supplier's 
or oil refiner's facility, or other location;
    (iii) The sulfur content of the oil from which the shipment came 
(or of the shipment itself); and
    (iv) The method used to determine the sulfur content of the oil.
    (3) For coal:
    (i) The name of the coal supplier;
    (ii) The location of the coal when the sample was collected for 
analysis to determine the properties of the coal, specifically 
including whether the coal was sampled as delivered to the affected 
facility or whether the sample was collected from coal in storage at 
the mine, at a coal preparation plant, at a coal supplier's facility, 
or at another location. The certification shall include the name of the 
coal mine (and coal seam), coal storage facility, or coal preparation 
plant (where the sample was collected);
    (iii) The results of the analysis of the coal from which the 
shipment came (or of the shipment itself) including the sulfur content, 
moisture content, ash content, and heat content; and
    (iv) The methods used to determine the properties of the coal.
    (4) For other fuels:
    (i) The name of the supplier of the fuel;
    (ii) The potential sulfur emissions rate or maximum potential 
sulfur emissions rate of the fuel in nanograms per joule (ng/J) heat 
input; and
    (iii) The method used to determine the potential sulfur emissions 
rate of the fuel.
    (g) Compliance determination with an annual emission limit--The 
owner or operator of each affected facility subject to a federally 
enforceable requirement limiting the annual emissions shall calculate 
the annual emissions individually for each fuel combusted, as 
applicable. The annual emission limitation is determined on a 12-month 
rolling average basis with a new annual emission limitation calculated 
at the end of the calendar month, unless a different reporting period 
is identified in paragraph (c).
    (h) Recordkeeping. Owner/operator shall maintain the following 
records for at least five years:
    (1) All CEMS data, including the date, place, and time of sampling 
or measurement; parameters sampled or measured; and results.
    (2) All fuel supplier certifications and information identified in 
paragraph (f)(1), (2), (3), or (4) of this section, as applicable.
    (3) Records of quality assurance and quality control activities for 
emissions measuring systems including, but not limited to, any records 
required by 40 CFR Part 75.
    (4) Records of all major maintenance activities conducted on 
emission units, air pollution control equipment, and CEMS.
    (5) Any other records required by 40 CFR part 75.
    (i) Reporting. All reports under this section shall be submitted to 
the Director, Division of Enforcement and Compliance Assistance, U.S. 
Environmental Protection Agency, Region 2, 290 Broadway, New York, New 
York 10007-1866.
    (1) Owner/operator shall submit quarterly excess emissions reports 
no later than the 30th day following the end of each calendar quarter. 
Excess emissions means emissions that exceed the emissions limits 
specified in paragraph (c) of this section. The reports shall include 
the magnitude, date(s), and duration of each period of excess 
emissions, specific identification of each period of excess emissions 
that occurs during startups, shutdowns, and malfunctions of the unit, 
the nature and cause of any malfunction (if known), and the corrective 
action taken or preventative measures adopted.
    (2) Owner/operator shall submit quarterly CEMS performance reports, 
to include dates and duration of each period during which the CEMS was 
inoperative (except for zero and span adjustments and calibration 
checks), reason(s) why the CEMS was inoperative and steps taken to 
prevent recurrence, any CEMS repairs or adjustments, and results of any 
CEMS performance tests required by 40 CFR part 75 (Relative Accuracy 
Test Audits, Relative Accuracy Audits, and Cylinder Gas Audits).
    (3) When no excess emissions have occurred or the CEMS has not been 
inoperative, repaired, or adjusted during the reporting period, such 
information shall be stated in the report.
    (4) Owner/operator shall submit semi-annual fuel certification 
reports no later

[[Page 51930]]

than the 30th day following the end of each six month period.
    (5) Owner/operator shall submit an annual emissions limitation 
calculation report no later than the 30th day following the end of the 
calendar year or quarter if a rolling average is required in paragraph 
(c).
    (j) Notifications. (1) Owner/operator shall submit notification of 
commencement of construction of any equipment which is being 
constructed to comply with the emission limits in paragraph (c) of this 
section.
    (2) Owner/operator shall submit semi-annual progress reports on 
construction of any such equipment.
    (3) Owner/operator shall submit notification of initial startup of 
any such equipment.
    (k) Equipment operation. At all times, owner/operator shall 
maintain each unit, including associated air pollution control 
equipment, in a manner consistent with good air pollution control 
practices for minimizing emissions.
    (l) Credible Evidence. Nothing in this section shall preclude the 
use, including the exclusive use, of any credible evidence or 
information, relevant to whether a source would have been in compliance 
with requirements of this section if the appropriate performance or 
compliance test procedures or method had been performed.

[FR Doc. 2012-21056 Filed 8-27-12; 8:45 am]
BILLING CODE 6560-50-P