[Federal Register Volume 78, Number 134 (Friday, July 12, 2013)]
[Rules and Regulations]
[Pages 41846-41850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16493]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2013-0180, FRL-9830-7]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the New York State Implementation Plan (SIP) for ozone 
concerning the control of oxides of nitrogen. The SIP revision consists 
of amendments to Title 6 of the New York Codes, Rules and Regulations 
Part 200, ``General Provisions,'' Part 212, ``General Process Emission 
Sources,'' Part 220, ``Portland Cement Plants and Glass Plants,'' and 
Subpart 227-2, ``Reasonably Available Control Technology (RACT) For 
Major Facilities of Oxides of Nitrogen (NOX).'' The intended 
effect of this action is to approve control strategies, required by the 
Clean Air Act, which will result in emission reductions that will help 
attain and maintain the national ambient air quality standards for 
ozone.

DATES: This rule will be effective August 12, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2013-0180. All

[[Page 41847]]

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 2 Office, Air 
Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-
1866. The Air Programs Branch dockets are available from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The Air 
Programs Branch telephone number is 212-637-4249.

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What was included in New York's submittals?
II. What comments did EPA receive in response to its proposal?
III. What is EPA's evaluation of part 212, ``General Process 
Emission Sources''?
IV. What is EPA's evaluation of part 220, ``Portland Cement Plants 
and Glass Plants''?
V. What is EPA's evaluation of part 227-2, ``Reasonably Available 
Control Technology (RACT) For Major Facilities of Oxides of Nitrogen 
(NOX)''?
VI. What other revisions did New York make?
VII. What is EPA's conclusion?
VIII. Statutory and Executive Order Reviews

I. What was included in New York's submittals?

    On August 19, 2010 and December 15, 2010, the New York State 
Department of Environmental Conservation (NYSDEC), submitted to EPA 
proposed revisions to the SIP, which included State adopted revisions 
to four regulations contained in Title 6 of the New York Code of Rules 
and Regulations (6 NYCRR) Part 200, ``General Provisions,'' Part 212, 
``General Process Emission Sources,'' Part 220, ``Portland Cement 
Plants and Glass Plants,'' and Part 227-2, ``Reasonably Available 
Control Technology (RACT) For Major Facilities of Oxides of Nitrogen 
(NOX),'' with effective dates of January 1, 2011, September 
30, 2010, July 11, 2010 and July 8, 2010, respectively.

II. What comments did EPA receive in response to its proposal?

    On April 10, 2013 (78 FR 21302), EPA proposed to approve New York's 
revised Parts 200, 212, 220 and 227-2. For a detailed discussion on the 
content and requirements of the revisions to New York's regulations, 
the reader is referred to EPA's proposed rulemaking action.
    In response to EPA's April 10, 2013 proposed rulemaking action, EPA 
received no public comments.

III. What is EPA's evaluation of part 212, ``General Process Emission 
Sources''?

    The NYSDEC revised 6 NYCRR Part 212, by adding section 212.12, 
``Hot mix asphalt production plants,'' to include control requirements 
for hot mix asphalt production plants. These control requirements will 
be specifically aimed at reducing NOX emissions resulting 
from combustion during the aggregate drying and heating process.
    With the exception of section 212.12, NOX RACT 
requirements under Part 212 affect only major facilities. Major 
facilities or major sources are those that have a potential to emit 
NOX emissions in excess of 100 tons/yr (upstate) and 25 
tons/yr (downstate or in the New York Metropolitan Area). Most, if not 
all, hot mix asphalt plants in New York State are minor sources. These 
new requirements will therefore be targeted primarily at minor sources. 
On February 28, 2013, New York submitted a letter to EPA certifying 
that there are no ``major source'' asphalt production plants located in 
New York State.
    Part 212 contains the required elements for a federally enforceable 
rule: Emission control requirements, compliance procedures and test 
methods, compliance dates and record keeping provisions. Therefore, EPA 
is approving the revisions to Part 212.

IV. What is EPA's evaluation of part 220, ``Portland Cement Plants and 
Glass Plants''?

    The NYSDEC revised 6 NYCRR Part 220, which is divided into two 
subparts: 220-1 for portland cement plants; and 220-2 for glass 
manufacturing plants. In addition to other requirements, the existing 
regulation imposed RACT requirements on NOX emissions from 
portland cement kilns. The NYSDEC revised Part 220 to require updated 
NOX RACT for cement kilns at portland cement plants, and to 
require NOX RACT for glass furnaces at glass plants. The 
revisions will apply statewide to major facilities only. Major 
facilities are those that have a potential to emit NOX 
emissions that exceed 100 tons/yr (upstate) and 25 tons/yr (downstate).
    The NYSDEC is taking a RACT approach that requires a facility 
specific analysis. The plant owner or operator will be required to 
perform a facility specific RACT analysis for emissions of 
NOX that includes proposed NOX RACT emission 
limit(s), identifies the procedures and monitoring equipment to be used 
to demonstrate compliance with the proposed NOX RACT 
emission limit(s), and includes a schedule for equipment installation. 
The RACT analysis will be submitted to the NYSDEC for review and 
approval and subsequently submitted to EPA as a proposed revision to 
the SIP.

Subpart 220-1 Portland Cement Plants

    It is EPA's understanding that there are three portland cement 
plants located in New York State that are subject to the RACT 
provisions of subpart 220-1 (Holcim, Lafarge and Lehigh). These three 
facilities are also subject to New York's regional haze plan's best 
available retrofit technologies (BART) provisions pursuant to 6 NYCRR 
Part 249.
    On August 28, 2012 (77 FR 51915), EPA approved the BART 
determinations for the three portland cement plants pursuant to Part 
249. Although EPA believes that the BART determinations approved for 
these facilities would also constitute RACT, New York is obligated to 
perform RACT evaluations and submit the RACT determinations to EPA as 
SIP revisions in order to satisfy the subpart 220-1.6(b)(4) RACT 
requirement and sections 172(c)(1) and 182(b) of the Clean Air Act 
(Act). In a letter dated February 28, 2013 to EPA, New York commits to 
submit the applicable single source NOX RACT determinations 
to EPA by December 1, 2013.
    EPA evaluated the provisions of subpart 220-1 for consistency with 
the Act, EPA regulations, and EPA policy, and is conditionally 
approving them based on New York submitting the individual single 
source RACT determinations to EPA by December 1, 2013.

Subpart 220-2 Glass Plants

    It is EPA's understanding that there are four glass plants located 
in New York State. Subpart 220-2 does not identify a specific control 
strategy or emission limit as RACT for these facilities and requires 
individual source specific RACT determinations. To date, EPA has not 
received any of those source specific RACT determinations. However, in 
a letter dated February 28, 2013 to EPA, New York commits to submit the 
applicable single source NOX

[[Page 41848]]

RACT determinations to EPA by December 1, 2013.
    EPA evaluated the provisions of subpart 220-2 for consistency with 
the Act, EPA regulations, and EPA policy, and is conditionally 
approving them based on New York submitting the individual single 
source RACT determinations to EPA by December 1, 2013.

V. What is EPA's evaluation of part 227-2, ``Reasonably Available 
Control Technology (RACT) for Major Facilities of Oxides of Nitrogen 
(NOX)''?

    New York adopted revisions to Subpart 227-2 for the purpose of 
imposing more stringent emission limits on major stationary sources of 
NOX that contribute to local and regional nonattainment of 
the 1997 and 2008 ozone standards. The revisions to Subpart 227-2 
essentially entail increasing the stringency of emissions limits for 
six of the source categories and lowering of the size thresholds for 
two categories of sources. There are also two revisions that will allow 
subject sources increased flexibility in achieving compliance--one 
allows different owners to engage in a systems averaging plan and the 
second allows a permanent shutdown by a date certain as a compliance 
option.
    Regarding the systems averaging plan, EPA has not classified any 8-
hour ozone nonattainment areas in New York as ``severe.'' However, EPA 
classified the New York City Metropolitan area (NYMA) as severe 
nonattainment for the 1-hour standard. Although EPA revoked the 1-hour 
standard, the ``severe'' classification for the NYMA 1-hour area was 
retained to maintain consistency with existing SIP-approved regulations 
and the ``anti-backsliding'' provisions of the Act. The counties 
affected by the 1-hour ``severe'' classification are the same counties 
defined by EPA for New York's marginal 2008 8-hour ozone nonattainment 
area for the NYMA and include the same counties now being maintained 
for the 1997 8-hour moderate ozone NYMA. As discussed in the April 10, 
2013 proposed rule, since New York avoids potential confusion by 
defining the affected counties in the ``severe nonattainment area,'' 
this is acceptable to EPA.
    Therefore, since the NYMA is the only area designated as severe for 
ozone, sources in the NYMA cannot average with sources outside the 
NYMA.
    EPA believes that the new presumptive emission limits and other 
control requirements will result in additional NOX 
reductions throughout the State thereby strengthening New York's ozone 
SIP and will help the State attain and maintain the 1997 ozone standard 
and help achieve attainment of the 2008 8-hour ozone standard. In 
addition, New York's revised system averaging plan is acceptable to EPA 
as it is enforceable through federally enforceable Title V operating 
permits and it reflects current situations where there could be 
multiple ownership of a particular facility.
    EPA evaluated the provisions of Part 227-2 for consistency with the 
Act, EPA regulations, and EPA policy and is approving them.

VI. What other revisions did New York make?

    New York also made administrative changes to Part 200, ``General 
Provisions'' which reflect implementation of the Part 212, 220 and 227-
2 provisions. The Part 200 revisions also reflect implementation of 
provisions for three previously approved New York regulations, Part 
228, ``Surface Coating Processes, Commercial and Industrial Adhesives, 
Sealants and Primers,'' Part 234, ``Graphic Arts,'' and Part 241, 
``Asphalt Pavement and Asphalt Based Surface Coating,'' (see 77 FR 
13974). It is important to note that EPA is approving only those 
revisions made to Part 200, specifically sections 200.1 and 200.9, as 
effective January 1, 2011.

VII. What is EPA's conclusion?

    EPA has evaluated New York's submittal for consistency with the 
Act, EPA regulations, and EPA policy. EPA is approving revisions made 
to 6 NYCRR Part 200, ``General Provisions,'' Part 212, ``General 
Process Emission Sources,'' Part 220, ``Portland Cement Plants and 
Glass Plants,'' and Part 227-2, ``Reasonably Available Control 
Technology (RACT) For Major Facilities of Oxides of Nitrogen 
(NOX)'' with effective dates of January 1, 2011, September 
30, 2010, July 11, 2010 and July 8, 2010, respectively, as meeting the 
SIP requirements of the Act. EPA is: Approving sections 200.1 and 
200.9; approving Part 212; conditionally approving Part 220 based on 
New York's commitment to submit the individual RACT determinations to 
EPA as SIP revisions by December 1, 2013; and, approving Part 227-2. 
These revisions meet the requirements of the Act and EPA's regulations, 
and are consistent with EPA's guidance and policy. EPA is taking this 
action pursuant to section 110 and part D of the Act and EPA's 
regulations.
    EPA is conditionally approving New York's proposed revisions to 6 
NYCRR Part 220 based on New York's February 28, 2013 letter, committing 
to submit the applicable NOX RACT single source SIPs by 
December 1, 2013.
    EPA is also correcting a typographical error to table (c), ``EPA 
approved regulations'' in 40 CFR 52.1670 for the Part 241, ``Asphalt 
Pavement and Asphalt Based Surface Coating'' entry which EPA approved 
on March 8, 2012 (77 FR 13974).

VIII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible

[[Page 41849]]

methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 10, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Intergovernmental relations, Oxides of 
Nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: June 27, 2013.
Judith A. Enck,
Regional Administrator, Region 2.

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

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart HH--New York

0
2. In 52.1670, the table in paragraph (c) is amended under Title 6 by:
0
a. Revising the entry for Part 200, Section 200.1;
0
b. Removing the entry for Sections 200.6, 200.7 and 200.9, and adding 
in its place an entry for Sections 200.6 and 200.7, and an entry for 
Section 200.9;
0
c. Revising the entries for Parts 212, 220, Subpart 227-2 and Part 241 
to read as follows:


52.1670  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved New York State Regulations and Laws
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                                         State  effective
       New York State regulation               date         Latest EPA approval date            Comments
----------------------------------------------------------------------------------------------------------------
Title 6:
    Part 200, General Provisions.......            1/1/11  7/12/13 [Insert page        The word odor is removed
    Section 200.1......................                     number where the document   from the Subpart
                                                            begins].                    200.1(d) definition of
                                                                                        ``air contaminant or air
                                                                                        pollutant.''
                                                                                       Redesignation of non-
                                                                                        attainment areas to
                                                                                        attainment areas
                                                                                        (200.1(av)) does not
                                                                                        relieve a source from
                                                                                        compliance with
                                                                                        previously applicable
                                                                                        requirements as per
                                                                                        letter of Nov. 13, 1981
                                                                                        from H. Hovey, NYSDEC.
                                                                                       Changes in definitions
                                                                                        are acceptable to EPA
                                                                                        unless a previously
                                                                                        approved definition is
                                                                                        necessary for
                                                                                        implementation of an
                                                                                        existing SIP regulation.
                                                                                       EPA is including the
                                                                                        definition of
                                                                                        ``Federally
                                                                                        enforceable'' with the
                                                                                        understanding that (1)
                                                                                        the definition applies
                                                                                        to provisions of a Title
                                                                                        V permit that are
                                                                                        correctly identified as
                                                                                        Federally enforceable,
                                                                                        and (2) a source accepts
                                                                                        operating limits and
                                                                                        conditions to lower its
                                                                                        potential to emit to
                                                                                        become a minor source,
                                                                                        not to ``avoid''
                                                                                        applicable requirements.
    Sections 200.6 and 200.7                      2/25/00  4/22/08, 73 FR 21548.
    Section 200.9                                  1/1/11  7/12/13 [Insert page        EPA is approving
                                                            number where the document   reference documents that
                                                            begins].                    are not already
                                                                                        Federally enforceable.
 
                                                  * * * * * * *
    Part 212, General Process Emission            9/30/10  7/12/13 [Insert page        SIP revisions submitted
     Sources.                                               number where the document   in accordance with Sec.
                                                            begins].                     212.10(c)(3) and
                                                                                        212.12(c) are effective
                                                                                        only if approved by EPA.
 
                                                  * * * * * * *
    Part 220, Portland Cement Plants              7/11/10  7/12/13 [Insert page        SIP revisions submitted
     and Glass Plants.                                      number where the document   in accordance with Sec.
                                                            begins].                     220-1.6(b)(4) and 220-
                                                                                        2.3(a)(4) are effective
                                                                                        only if approved by EPA.

[[Page 41850]]

 
 
                                                  * * * * * * *
    Subpart 227-2, Reasonably Available            7/8/10  7/12/13 [Insert page        SIP revisions submitted
     Control Technology (RACT) For                          number where the document   in accordance with Sec.
     Major Facilities of Oxides of                          begins].                     227-2.3(c) are
     Nitrogen (NOX).                                                                    effective only if
                                                                                        approved by EPA.
 
                                                  * * * * * * *
    Part 241, Asphalt Pavement and                 1/1/11  3/8/12, 77 FR 13974.
     Asphalt Based Surface Coating.
 
                                                  * * * * * * *
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[FR Doc. 2013-16493 Filed 7-11-13; 8:45 am]
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