[Federal Register Volume 82, Number 231 (Monday, December 4, 2017)]
[Rules and Regulations]
[Pages 57126-57130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25945]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2017-0013; FRL 9971-28-Region 2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
source-specific revision to the New York state implementation plan 
(SIP) that establishes Best Available Retrofit Technology (BART) 
emission limits for the Danskammer Generating Station (``Danskammer'') 
Unit 4, owned and operated by Danskammer Energy LLC. The SIP revision 
establishes BART emission limits for sulfur dioxide, oxides of 
nitrogen, and particulate matter that are identical to the emission 
limits established by the EPA's federal implementation plan (FIP) for 
Danskammer Unit 4, which was published on August 28, 2012. The EPA 
finds that the SIP revision fulfills the requirements of the Clean Air 
Act and the EPA's Regional Haze Rule for BART at Danskammer Unit 4. In 
conjunction with this approval, we are withdrawing those portions of 
the FIP that address BART for Danskammer Unit 4.

DATES: This rule is effective on January 3, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R02-OAR-2017-0013. 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., confidential 
business information (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 through www.regulations.gov, or please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section for 
additional availability information.

FOR FURTHER INFORMATION CONTACT: Edward J. Linky, Environmental 
Protection Agency, Air Programs Branch, 290 Broadway, New York, New 
York 10007-1866 at 212-637-3764 or by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' 
and ``our'' refer to the EPA.

Table of Contents

I. What action is the EPA taking today?
II. What significant comments were received in response to the EPA's 
proposed action?
III. What are the EPA's conclusions?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. What action is the EPA taking today?

    The EPA is approving a source-specific SIP revision for Danskammer 
Unit 4 (the ``Danskammer SIP Revision'') that was submitted by the New 
York State Department of Environmental Conservation (NYSDEC) on August 
10, 2015, and supplemented on August 5, 2016. Specifically, the EPA is 
approving BART emission limits for sulfur dioxide (SO2), 
oxides of nitrogen (NOX), and particulate matter (PM) for 
Danskammer Unit 4 that are equivalent to the emission limits 
established by the EPA's FIP that was promulgated on August 28, 2012 
(77 FR 51915, 51917).
    In its submittal, NYSDEC included the following BART emission 
limits for Danskammer Unit 4: 0.12 pounds of NOX per million 
British thermal units (lb NOX/MMBtu) calculated on a 24-hour 
average during the ozone season and on a rolling 30-day average during 
the rest of the year; 0.09 lb SO2/MMBtu calculated on a 24-
hour average; and 0.06 lb PM/MMBtu calculated on a 1-hour average. 
NYSDEC also included a condition that restricts Danskammer Unit 4 to 
combusting only natural gas. As a result of the EPA's approval, the EPA 
is withdrawing those portions of the FIP that address BART for 
Danskammer Unit 4. The reader is referred to EPA's Proposed Rule, 82 FR 
21749 (May 10, 2017), for a detailed discussion of this SIP revision.

II. What significant comments were received in response to the EPA's 
proposed action?

    EarthJustice (EJ) submitted the following comments on behalf of the 
National Parks Conservation Association (NPCA) and Sierra Club.
    Comment 1: EJ supports the inclusion in the New York SIP of limits 
that restrict combustion at Danskammer Unit 4 to natural gas. EJ agrees 
with the EPA's conclusion that such a restriction will have the effect 
of reducing visibility-impairing emissions compared to the prior Title 
V permit and the EPA FIP that allowed combustion of coal, oil, or 
natural gas in Unit 4. According to the 2012 BART determination study 
for Danskammer Unit 4 that formed the basis for NYSDEC's and the EPA's 
BART determinations, 100% firing of natural gas is associated with the 
highest percent reduction of SO2 of the controls examined at 
the time, and the third highest percent reduction of NOX. 
Elimination of coal combustion is consistent with BART and will 
certainly provide visibility benefits at Class I areas.
    Response: The EPA acknowledges EJ's support of the natural gas 
requirement in the Danskammer SIP Revision.
    Comment 2: The 2012 BART determination for Danskammer Unit 4 formed 
the basis for NYSDEC's and EPA's prior BART determinations. Since the 
unit had already been converted to co-fire or exclusively fire natural 
gas in 1987, the determination included the option of 100% firing of 
natural gas as a feasible BART technology. Thus, the

[[Page 57127]]

use of natural gas is not fuel switching for this unit. The prior BART 
analysis lists an achievable emission rate of 0.08 lbs/MMBtu for 
NOX, and a control efficiency of 99.95% under the 100% 
natural gas combustion scenario. Since natural gas combustion 
technology is already installed and operating, the cost of the 
technology to achieve these emission levels is $0.
    Response: The commenter's intended point is that because 
restricting Danskammer Unit 4 to combusting natural gas is not a form 
of fuel switching, the state must adopt BART emission limits that 
reflect the low emission rates associated with natural gas combustion. 
The EPA disagrees that restricting Danskammer Unit 4 to combusting 
natural gas is not a form of fuel switching. The Danskammer Unit 4 
boiler was designed to combust coal, fuel oil, and natural gas, and 
until recent years, coal was the unit's primary fuel source. By 
prohibiting Danskammer Unit 4 from combusting coal or fuel oil going 
forward, the Danskammer SIP Revision effects a fuel switch from multi-
fuel capability to the exclusive use of natural gas. In the BART 
Guidelines, the EPA stated that ``it is not our intent to direct States 
to switch fuel forms, e.g., from coal to gas.'' 70 FR 39104, 39164 
(July 6, 2005). As such, NYSDEC's decision to require fuel switching at 
Danskammer Unit 4 as a condition in its SIP revision was entirely 
discretionary. The EPA acknowledges that, by combusting only natural 
gas, Danskammer Unit 4 can achieve the lower emission limits cited by 
the commenter without additional cost, but the EPA cannot disapprove 
the SIP for not including lower limits when the BART Guidelines do not 
require states to consider fuel switching as a BART option in the first 
instance. See 70 FR at 39164.
    Comment 3: As noted by the EPA, the emission limits for 
SO2 and NOX adopted by NYSDEC for Danskammer Unit 
4 are identical to those contained in EPA's 2012 FIP. However, the 
rulemaking record for the 2012 FIP clearly demonstrates that these 
emission limits were designed for a plant that maintained the option to 
use coal as a fuel. The EPA's Regional Haze Rule requires that the 
``determination of BART must be based on an analysis of the best system 
of continuous emission control technology available and associated 
emission reductions achievable.'' 40 CFR 51.308(e)(1)(ii)(A). According 
to the EPA's own BART Guidelines, ``[t]o complete the BART process, you 
must establish enforceable emission limits that reflect the BART 
requirements.'' 70 FR 39172. The coal-based emission limits in the 
EPA's current proposal no longer reflect BART, as the plant is now 
restricted to burning natural gas. Thus they are not emission 
reductions ``associated'' with natural gas combustion under the BART 
Guidelines. The EPA must instead establish lower limits under BART 
reflecting the natural gas-only fuel restriction it proposes to 
incorporate into the SIP.
    Response: The EPA disagrees that the natural gas requirement in the 
Danskammer SIP Revision is BART. As explained in the response to 
comment 2, the BART Guidelines do not require states to consider fuel 
switching as a BART control option. In its 2012 SIP submittal, NYSDEC 
included at its discretion a potential control option of 100% 
combustion of natural gas for Danskammer Unit 4 before rejecting it in 
favor of other control options. In the Danskammer SIP Revision, 
however, NYSDEC did not indicate that it was now determining 100% 
natural gas combustion to be BART. Rather, NYSDEC adopted the BART 
emission limits that the EPA established in its 2012 FIP, which were 
based on flue-gas desulfurization (FGD) for SO2, various 
options for reducing NOX, and Unit 4's existing 
electrostatic precipitator (ESP) for PM. The EPA included a detailed 
technical justification for its BART determinations in the record for 
that rulemaking, see 77 FR 24793, 24812-15 (April 25, 2012) (proposal); 
77 FR 51918-23 (final), and the commenter has not made any effort to 
rebut that analysis with new information. Nothing in the Clean Air Act 
(CAA), the Regional Haze Rule, or the BART Guidelines requires the EPA 
to disapprove the Danskammer SIP Revision and establish lower emission 
limits reflecting 100% combustion of natural gas simply because NYSDEC 
included that condition in addition to its BART emission limits in its 
SIP revision. In any event, the EPA notes that requiring the lower 
emission limits favored by the commenter would not achieve an 
environmental benefit because the natural gas requirement in the 
Danskammer SIP Revision already has the practical effect of reducing 
Danskammer Unit 4's emissions to levels that are consistent with those 
lower emission limits.
    Comment 4: The EPA claims in its proposal that NYSDEC's proposal is 
sufficient because it is ``more stringent than the EPA's FIP.'' 82 FR 
21750. However, the BART determination cannot simply be more stringent 
than the EPA's FIP; it must stand alone as a BART determination, which 
includes requiring an emission limit consistent with the ``best system 
of continuous emission control technology available,'' in this case, at 
a minimum, the exclusive use of natural gas. 40 CFR 
51.308(e)(1)(ii)(A). In the original BART determination, as the EPA 
noted in its 2012 proposal, ``[a]lthough gas co-firing (and 100% gas 
firing) appears to be feasible and cost effective, it was ruled out as 
a control option due to high price volatility of natural gas and 
potential reliability concerns on the state's electric system.'' 77 FR 
24812. These concerns are no longer valid, if indeed they were in the 
first place. Thus, based on the original BART determination for the 
unit, limits associated with the 100% firing of natural gas should be 
those originally associated with that control, i.e., no higher than 
0.08 lbs/MMBtu for NOX and 99.95 percent SO2 
control efficiency consistent with the unit's existing limits. The 
existing NOX limit is on a 24-hour average during the ozone 
season and a 30-day average during the remainder of the year. This is 
unjustified and inappropriate for a visibility-specific limit given 
100% gas firing and higher impacts from nitrates during the wintertime. 
Also, the exclusive use of natural gas would reduce PM emissions as 
well, and so a PM emission limit should be set that reflects 100% 
natural gas firing, rather than the proposed limit of 0.06 lbs/MMBtu on 
a 1-hour basis, which was determined based on tests performed when 
burning coal.
    Response: The EPA disagrees with this comment for the same reasons 
described in the EPA's previous responses. The EPA acknowledges that 
the Agency stated at proposal that the Danskammer SIP revision was 
approvable ``because it is more stringent than the EPA's FIP.'' 82 FR 
21750. More accurately, the SIP revision is approvable because it meets 
minimum CAA requirements by adopting the emission limits in the EPA's 
FIP, and then goes beyond those minimum CAA requirements by including 
the ``more stringent'' natural gas requirement. See CAA section 116 
(``[N]othing in [the CAA] shall preclude or deny the right of any State 
. . . to adopt or enforce . . . any requirement respecting control or 
abatement of air pollution . . . .'').
    Comment 5: As noted, NYSDEC has claimed to submit these changes for 
Danskammer Unit 4 as an ``updated'' BART determination. The EPA has 
proposed to approve it as such, simultaneously withdrawing the BART 
determination in its FIP. However, NYSDEC has not submitted a BART 
determination, only changes to Unit 4's Title V permit. Neither the 
state nor the EPA has offered an actual BART

[[Page 57128]]

determination, which must include consideration of: The costs of 
compliance, the energy and non-air quality environmental impacts of 
compliance, any pollution control equipment in use at the source, the 
remaining useful life of the source, and the degree of improvement in 
visibility which may reasonably be anticipated to result from the use 
of such technology. 40 CFR 51.308(e)(1)(ii)(A). In this case, any 
updated BART determination should also include consideration of 
controls that can be used in addition to 100% firing of natural gas. 
Because the proposed rulemaking does not include a BART determination, 
the EPA cannot use it as a replacement for its challenged FIP. To fix 
this critical shortcoming, the EPA has several options. First, the EPA 
could include a BART determination with the final rule based on the 
information submitted with the 2012 New York haze SIP, setting limits 
based on 100% natural gas combustion and any further controls that it 
determines to be BART. Second, NYSDEC could immediately supplement its 
2012 haze plan as to Danskammer Unit 4, and include a BART 
determination, again based on the prior BART analysis for 100% natural 
gas combustion and any additional BART controls. If NYSDEC pursues the 
second option and it cannot be achieved in a timely manner, EPA must 
issue a limited approval of the Title V permit restriction as to 
natural gas combustion and maintain the current FIP, disapproving the 
current submission as to any purported BART determination and requiring 
NYSDEC to formally resubmit an actual BART determination that includes 
at least 100% natural gas combustion at Unit 4.
    Response: In the 2012 FIP, the EPA ``encourage[d] New York at any 
time to submit a SIP revision to incorporate provisions that match the 
terms of our FIP, or relevant portion thereof,'' explaining that if we 
approved the SIP revision, it would replace the FIP provisions. 77 FR 
51917. NYSDEC responded by submitting the Danskammer SIP Revision, 
which incorporated provisions that match the terms of our FIP, as well 
as an additional requirement restricting Danskammer Unit 4 to 
combusting natural gas. Because NYSDEC was not required to update its 
BART determinations beyond incorporating the BART emission limits from 
the 2012 FIP, the EPA has no basis to disapprove the SIP revision and 
supplant it with another FIP.
    Comment 6: The CAA requires that Danskammer procure, install, and 
operate BART as expeditiously as practicable. ``As expeditiously as 
practicable'' is defined as five years after the date of approval of a 
plan revision or promulgation of a FIP. The FIP here was promulgated on 
August 28, 2012. Therefore, the EPA must act promptly to respond to the 
issues identified in this letter and determine BART for gas-only 
combustion to enable Danskammer to meet this deadline.
    Response: The 2012 FIP required Danskammer Unit 4 to comply with 
the BART emission limits by July 1, 2014. As a result of damage to the 
facility sustained during flooding in 2012, Danskammer Unit 4 was non-
operational until the fall of 2014, when it began operating as a 
natural gas peaking unit. Danskammer Unit 4 has been complying with the 
BART emission limits in the FIP since it restarted in 2014. The 
Danskammer SIP Revision adopts the FIP's BART emission limits, and they 
will become federally enforceable on the effective date of this final 
action. Therefore, NYSDEC has satisfied CAA section 169A(g)(4)'s 
requirement that BART must be installed as expeditiously as 
practicable, but in no event later than five years after the date of 
approval of a plan revision (i.e., the Danskammer SIP Revision).

III. What are the EPA's conclusions?

    The EPA has evaluated the Danskammer SIP Revision and is 
determining that it meets the requirements of the CAA and the Regional 
Haze Rule. Therefore, the EPA is approving the BART emission limits and 
related administrative requirements (i.e., monitoring, recordkeeping 
and reporting requirements) for Danskammer Unit 4, which are identical 
to those contained in the EPA's 2012 FIP: 0.12 lb NOX/MMBtu, 
calculated on a 24-hour average during the ozone season and on a 
rolling 30-day average during the rest of the year; 0.09 lb 
SO2/MMBtu, calculated on a 24-hour average; and 0.06 lb PM/
MMBtu, calculated on a 1-hour average. NYSDEC also included in its SIP 
revision a condition that restricts Danskammer Unit 4 to combusting 
only natural gas, which the EPA is approving into the SIP. 
Consequently, the EPA is withdrawing those portions of the 2012 FIP 
that address BART for Danskammer Unit 4.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, the EPA is finalizing the incorporation by reference of a 
single-source SIP revision, dated August 10, 2015, and supplemented on 
August 5, 2016, from NYSDEC for Danskammer Unit 4 (Facility DEC ID 
3334600011), including Title V permit conditions (permit ID 3-3346-
00011/00017) with Best Available Retrofit Technology (BART) emission 
limits for NOX, SO2, and PM. NYSDEC renewed 
Danskammer's Title V permit on February 24, 2015. The summary of 
emission limits and other enforceable requirements for this SIP 
revision are included in section I of this rulemaking. The EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov and/or at the EPA Region 2 Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information). Therefore, these 
materials have been approved by the EPA for inclusion in the SIP, have 
been incorporated by reference by EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of the EPA's approval, and will 
be incorporated by the Director of the Federal Register in the next 
update to the SIP compilation.\1\
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    \1\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is exempt from review by the Office of Management and 
Budget (OMB) because it will result in the approval of a SIP submitted 
by the New York State Department of Environmental Conservation for 
Danskammer Generation Station Unit No. 4. Approval of SIPs falls within 
a category of Actions that is exempted from review by OMB. It was 
therefore not submitted to OMB for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action falls within the category of Actions that OMB has 
exempted from review. This action specifically is an Approval of a 
State Implementation Plan (SIP).

[[Page 57129]]

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (PRA).\2\ Because this 
final rule has identical recordkeeping and reporting requirements to 
the EPA's 2012 FIP, the PRA does not apply.
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    \2\ 44 U.S.C. 3501 et seq.
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D. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
rule does not impose any requirements or create impacts on small 
entities as no small entities are subject to the requirements of this 
rule.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. Because this final 
rule has identical BART emission limits and related administrative 
requirements (i.e., monitoring, recordkeeping and reporting 
requirements) to the EPA's 2012 FIP, this final rule is not subject to 
the requirements of sections 202 or 205 of UMRA. This final 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.

F. 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.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments. Thus, Executive Order 13175 does not apply to this 
rule.

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

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997). The EPA interprets Executive Order 13045 as applying 
only to those regulatory actions that concern environmental health or 
safety risks that the EPA has reason to believe may disproportionately 
affect children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. 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.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards. Therefore, 
the EPA is not considering the use of any voluntary consensus 
standards.

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

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). As 
explained previously, this action provides identical BART emission 
limits and related administrative requirements (i.e., monitoring, 
recordkeeping and reporting requirements) to the EPA's 2012 FIP.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

M. 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 February 2, 2018. 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, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides.

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

    Dated: November 20, 2017.
E. Scott Pruitt,
Administrator.

    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. Section 52.1670(d) is amended by adding an entry entitled 
``Danskammer Energy LLC, Danskammer Generating Station'' to the end of 
the table to read as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (d) * * *

[[Page 57130]]



                                EPA-Approved New York Source-Specific Provisions
----------------------------------------------------------------------------------------------------------------
                                                             State       EPA approval
          Name of source              Identifier No.    effective date       date               Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Danskammer Energy LLC, Danskammer  NYSDEC Facility No.         2/25/15         11/4/17  Best Available Retrofit
 Generating Station.                33346000011.                                         Technology (BART)
                                                                                         emission limits for
                                                                                         NOX, SO2, and PM
                                                                                         pursuant to 6 NYCRR
                                                                                         part 249 for Unit 4 and
                                                                                         the requirement to
                                                                                         combust only natural
                                                                                         gas.
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Section 52.1686 is amended by:
0
a. Revising paragraph (a); and
0
b. Amending paragraph (c)(1) table by removing the entry ``Danskammer 
Generating Station--Dynergy.''
    The revision reads 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: Roseton Generating Station, Units 1 and 2;
* * * * *

[FR Doc. 2017-25945 Filed 12-1-17; 8:45 am]
 BILLING CODE 6560-50-P