[Federal Register Volume 83, Number 123 (Tuesday, June 26, 2018)]
[Proposed Rules]
[Pages 29723-29726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13722]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2016-0414; FRL-9979-91--Region 2]


Approval of Air Quality Implementation Plans; New York; Subpart 
225-1, Fuel Composition and Use--Sulfur Limitations

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing to approve a 
revision to the New York State Implementation Plan concerning sulfur-
in-fuel limits. The intended effect of this revision is to add a 
regulatory mechanism for meeting the existing obligations related to 
regional haze. The SIP revision consists of amendments to Title 6 of 
the New York Codes, Rules and Regulations Subpart 225-1, ``Fuel 
Composition and Use--Sulfur Limitations'' and Section 200.1, 
``Definitions'' and, also removes an obsolete provision from the Code 
of Federal Regulations related to facility specific sulfur-in-fuel 
limits.

DATES: Comments must be received on or before July 26, 2018.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2016-0414, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or withdrawn. The EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods i.e., the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

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, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. EPA's Evaluation of New York's Submittal
III. Updating 40 CFR 52.1675 Control Strategy and Regulations: 
Sulfur Oxides
IV. Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

    The Environmental Protection Agency (EPA) proposes to approve New 
York's State Implementation Plan (SIP) submittal consisting of 
revisions to Title 6 of the New York Codes, Rules and Regulations (6 
NYCRR) Section 200.1, ``Definitions,'' which adds a definition for 
waste oil. EPA proposes to approve, with limitations, Subpart 225-1, 
``Fuel Composition and Use--Sulfur Limitations,'' as contributing to 
attainment of the National Ambient Air Quality Standards (NAAQS) for 
particulate matter less than or equal to 2.5 microns in diameter (PM 
2.5) and the NAAQS for sulfur dioxide (SO2), and 
establishing a revised regulatory mechanism for New York's regional 
haze SIP. The EPA's proposed approval of New York's sulfur-in-fuel 
regulation into the SIP does not alter the EPA's prior action on New 
York's Regional Haze SIP, which includes emission reductions related to 
the sulfur-in-fuel requirements of section 19-0325 of the Environmental 
Conservation Law (ECL). 77 FR 51915 (Aug. 28, 2012). The EPA is 
proposing to approve these revisions, requested by New York, as 
strengthening the effectiveness of New York's SIP.
    Pursuant to 40 CFR part 51, the EPA also is proposing to remove a 
section from 40 CFR 52.1675 which lists sulfur limitations for various 
facilities in New York. EPA has determined that these limitations have 
expired and/or refer to sources which have been shut down. That 
determination was reflected in EPA's reformatting exercise that ensured 
that all revisions to the New York State SIPs are accurately reflected 
in 40 CFR part 52, including 40 CFR 52.1670(d), ``EPA approved State 
source-specific requirements.'' 76 FR 41705 (July 15, 2011). In 
addition, the sulfur-in-fuel rule proposed for approval here requires 
the use of lower sulfur fuel, with lower sulfur concentrations than the 
limits listed in 40 CFR 52.1675. The EPA is therefore removing the 
existing sulfur limitations in 40 CFR 52.1675 as they are superfluous 
and obsolete.

[[Page 29724]]

II. EPA's Evaluation of New York's Submittal

    On June 12, 2013, New York State Department of Environmental 
Conservation (NYSDEC) submitted to the EPA the proposed revisions to 
Section 200.1 and Subpart 225-1 and supplemental materials, including 
documentation of the comment period and public hearings, and NYSDEC's 
responses to public comments. These materials are in the EPA's docket 
for this proposal.

Revisions to Section 200.1

    The EPA is proposing to approve Section 200.1, which includes New 
York's new definition for ``waste oil'' at 6 NYCRR 200.1(cw). This 
definition is relevant to Subpart 225-1 and is consistent with similar 
definitions of waste oil recognized by EPA.
    NYSDEC also revised 6 NYCRR 200.9, Table 1, updating the list of 
federal regulations referenced in the amended Subpart 225-1. In a 
separate rulemaking action, the EPA approved a SIP submittal from New 
York, dated October 12, 2011 and revised on July 25, 2016, of Section 
200.9, Table 1. 81 FR 95049 (Dec. 27, 2016). That approval included the 
revisions to Section 200.9, Table 1, referenced in NYSDEC's June 12, 
2013 submittal. We therefore have already acted on the revision to 
Section 200.9, Table 1, which references the amended Subpart 225-1, and 
we are not taking action here.

Subpart 225-1

    New York relied on ECL section 19-0325, limiting sulfur 
concentrations in fuel oil, in its Regional Haze SIP and the EPA 
approved it as part of New York's emissions reduction plan to make 
reasonable progress toward reducing widespread visibility impairment. 
77 FR 51915. By submitting this revision to Subpart 225-1 to the EPA 
for SIP approval, New York is adding a regulatory mechanism for 
implementing the reduced sulfur-in-fuel limits in ECL-19-0325 and the 
Regional Haze SIP. The EPA proposes to approve these revisions to 
strengthen the New York's SIP.

Sulfur-in-Fuel Limitations

    Section 225-1.2 provides the sulfur-in-fuel limitations and are 
identified below.
    Owners and/or operators of any stationary combustion installation 
that fires solid fuels are limited to the firing of solid fuel with a 
sulfur content listed in the table below on or after July 1, 2014:

------------------------------------------------------------------------
                                               Solid fuel  (pounds of
                   Area                     sulfur per million Btu gross
                                                    heat content)
------------------------------------------------------------------------
New York City.............................  0.2 MAX.
Nassau, Rockland and Westchester Counties.  0.2 MAX.
Suffolk County: Towns of Babylon,           0.6 MAX.
 Brookhaven, Huntington, Islip, and Smith
 Town.
Erie and Niagara Counties.................  1.7 MAX, 1.4 AVG.*
Remainder of State........................  2.5 MAX, 1.9 AVG *, and 1.7
                                             AVG (ANNUAL).**
------------------------------------------------------------------------
* Averages are computed for each emission source by dividing the total
  sulfur content by the total gross heat content of all solid fuel
  received during any consecutive three-month period.
** Annual averages are computed for each emission source by dividing the
  total sulfur content by the total gross heat content of all solid fuel
  received during any consecutive 12-month period.

    Owners and/or operators of any stationary combustion installation 
that fires residual oil are limited to the firing of residual oil with 
a sulfur content listed in the table below on or after July 1, 2014:

------------------------------------------------------------------------
                                       Residual oil  (percent sulfur by
                Area                                weight)
------------------------------------------------------------------------
New York City.......................                                0.30
Nassau, Rockland and Westchester                                    0.37
 Counties...........................
------------------------------------------------------------------------

    Owners and/or operators of any stationary combustion installation 
that fires residual oil are limited to the purchase of residual oil 
with a sulfur content listed in the table below on or after July 1, 
2014, and are limited to the firing of residual oil with a sulfur 
content listed in the table below on or after July 1, 2016:

------------------------------------------------------------------------
                                       Residual oil  (percent sulfur by
                Area                                weight)
------------------------------------------------------------------------
Suffolk County: Towns of Babylon,                                   0.50
 Brookhaven, Huntington, Islip, and
 Smith Town.........................
Erie and Niagara Counties...........                                0.50
Remainder of State..................                                0.50
------------------------------------------------------------------------

    Owners and/or operators of commercial, industrial, or residential 
emission sources that fire number two heating oil on or after July 1, 
2012 are limited to the purchase of number two heating oil with 0.0015 
percent sulfur by weight or less.
    Owners and/or operators of a stationary combustion installation 
that fires distillate oil other than number two heating oil are limited 
to the purchase of distillate oil with 0.0015 percent sulfur by weight 
or less on or after July 1, 2014.
    Owners and/or operators of any stationary combustion installation 
that fires distillate oil including number two heating oil are limited 
to the firing of distillate oil with 0.0015 percent sulfur by weight or 
less on or after July 1, 2016.
    Owners and/or operators of any stationary combustion installation 
that fires waste oil on or after July 1, 2014 are limited to the firing 
of waste oil with 0.75 percent sulfur by weight or less.

[[Page 29725]]

Exceptions and Variances Provided for in Subpart 225-1

    6 NYCRR Sections 225-1.3 and 225-1.4 include provisions allowing 
for exceptions or variances from the sulfur-in-fuel limits set forth in 
ECL 19-0325 and Section 225-1.2.
    Section 225-1.3 addresses exceptions to fuel limitations due to 
fuel shortage. It provides that NYSDEC may issue an order granting a 
temporary exception based on an insufficient supply of conforming fuel, 
provided the decision is certified by the New York State Energy 
Research and Development Authority. The exception cannot exceed 45 
days, unless the department permits a public hearing, after which the 
extension can be granted for up to one year. Section 225-1.3(e) 
recognizes that, pursuant to New York State Energy Law 5-117, any 
provisions of Section 225-1.3 may be preempted if the Governor declares 
that a fuel-supply emergency exists or is impending.\1\
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    \1\ Section 5-117 of the New York State Energy Law concerns 
powers granted to the Commissioner of the New York State Energy 
Research and Development Authority (NYSERDA) when the Governor finds 
there is a fuel supply emergency; the powers are authorized to the 
extent that they are not in conflict with federal law.
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    Section 225-1.4 allows for fuel mixture or equivalent emission rate 
variances. Fuels with sulfur content greater than that allowed by 
Section 225-1.2 may be fired when the facility owner can demonstrate 
that sulfur dioxide emissions do not exceed the value for S calculated 
using the following equation:

S = (1.1AM + 2BT)/(M + T)

Where:

S = Allowable sulfur dioxide emission (in pounds per million Btu)
A = Sulfur in oil allowed by section 225-1.2 of this Subpart (in 
percent by weight)
B = Average sulfur in solid fuel allowed by section 225-1.2 of this 
Subpart (in pounds of sulfur per million Btu gross heat content)
M = Percent of total heat input from liquid fuel
T = Percent of total heat input from solid fuel (including coal, 
coke, wood, wood waste, and refuse-derived fuel)

    Fuel mixtures and equivalent emission rate variances only apply to 
processes or stationary combustion installations. Compliance will be 
based on the total heat input from all fuels fired, including gaseous 
fuels. Any process or stationary combustion installation owner who 
chooses to fire a fuel mixture is subject to the emission and fuel 
monitoring requirements of Section 225-1.5.\2\
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    \2\ Subpart 225-1.4 also allows variances for fuel fired to 
demonstrate the performance of experimental equipment and/or 
processes for reducing sulfur compounds from an emission source.
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    In the initial approval of Part 225 into the SIP, the EPA indicated 
that variances adopted by the State pursuant to sections 225.2(b) and 
(c), 225.3, and 225.5(c) are federally enforceable only if approved by 
the EPA as SIP revisions. 46 FR 55690, 55693 (Nov. 12, 1981). The 
provisions of 225.2(b) and (c), 225.3, and 225.5(c), although now 
renumbered in revised Subpart 225-1, are substantively unchanged. 
Therefore, EPA's condition, that variances adopted pursuant to these 
conditions are federally enforceable only if approved by the EPA as SIP 
revisions, remains in effect. 81 FR 23167, 23171 (April 20, 2016); 40 
CFR part 52.1670.
    The EPA proposes to approve New York's Subpart 225-1 submittal, 
provided that, consistent with prior approvals of Part 225, any 
exception or variance must to be submitted to the EPA as a source-
specific SIP revision and is not federally enforceable until approved 
by EPA.

III. Updating 40 CFR 52.1675 Control Strategy and Regulations: Sulfur 
Oxides

    40 CFR 52.1675 includes a list of special limitations of sulfur-in-
fuels, adopted in the 1980s, for a variety of sources. EPA has 
determined that either these limits have expired or the sources have 
shut down. 47 FR 7662 (2/22/82); letter from NYSDEC, dated March 25, 
2011, confirming the shut-down of Lovett Generating Station (a copy is 
in the docket for this action). EPA's determination was reflected in 
the reformatting exercise that ensured that all revisions to the New 
York State SIP are accurately reflected in 40 CFR part 52, including 40 
CFR 52.1670(d), ``EPA approved State source-specific requirements.'' 76 
FR 41705 (July 15, 2011). 40 CFR 52.1670(d) identifies all source-
specific requirements still effective in New York State. The EPA is 
proposing to remove the provisions listed below from 40 CFR 52.1675 as 
superfluous and obsolete.
    List of special limitations from 40 CFR 52.1675(d), (f) and (g) 
that the EPA proposes to remove:

    (d) Section 225.3(e) of Subchapter A, Chapter III, Title 6 of 
New York State's Official Compilation of Codes, Rules and 
Regulations, is disapproved since it does not provide for the type 
of permanent control necessary to assure attainment and maintenance 
of national standards.
* * * * *
    (f) The following applies to the Environmental Protection 
Agency's approval as a SIP revision of the ``special limitation'' 
promulgated by the Commissioner of the New York State Department of 
Environmental Conservation on November 20, 1979 permitting the 
purchase and use by the Consolidated Edison Company of New York, 
Inc. of fuel oil with a maximum sulfur content of 1.5 percent, by 
weight, at units 2 and 3 of its Arthur Kill generating facility on 
Staten Island, New York and unit 3 of its Ravenswood generating 
station in Queens, New York:
    (1) On or before the ``Date of Conversion'' indicated below, 
each ``Facility'' indicated below shall combust only natural gas for 
the duration of the special limitation.
    (a) City College of New York, Amsterdam Ave. between W. 135th 
St. and W. 138th St., Manhattan--
    North Campus Academic Center: Converted North Campus Main Boiler 
(Compton Hall): Two boilers shut-down; One boiler converted;
    South Campus--Boiler Plant: Converted;
    North Campus Science and Physical Education Building: October 1, 
1980.
    (b) Harlem Hospital, 135th St. and Lenox Ave., Manhattan: April 
1, 1981;
    (c) Columbia University, 116th St. and Broadway, Manhattan: 
Converted;
    (d) New York City Housing Auth., Senator Robert F. Wagner 
Houses, 23-96 First Ave.: October 1, 1980;
    (e) New York City Housing Auth., Frederick Douglass Houses, 880 
Columbus Ave., Manhattan: October 1, 1980;
    (f) New York City Housing Auth., Manhattanville Houses, 549 W. 
126th St., Manhattan: October 1, 1980;
    (g) New York City Housing Auth., St. Nicholas Houses, 215 W. 
127th St.: October 1, 1980;
    (h) New York City Housing Auth., General Grant Houses, 1320 
Amsterdam Ave., Manhattan: October 1, 1980;
    (i) New York City Housing Auth., Harlem River Houses, 211-0-1 W. 
151st Street, Manhattan: October 1, 1980;
    (j) New York City Housing Auth., Martin Luther King Towers, 90 
Lenox Ave., Manhattan: October 1, 1980;
    (k) New York City Housing Auth., Drew Hamilton Houses, 210 W. 
142nd Street, Manhattan: October 1, 1980.
    (2) If any of the facilities identified in paragraph (g)(1) of 
this section, fail to meet the requirements of that paragraph, the 
Consolidated Edison Company shall not burn fuel oil with a sulfur 
content in excess of 0.30 percent, by weight. For this purpose, 
Consolidated Edison shall maintain a reserve supply of fuel oil with 
a maximum sulfur content of 0.30 percent, by weight, and shall have 
a mechanism to switch promptly to the use of such fuel oil.
    (3) EPA's approval of this revision to the New York SIP will 
extend for a period of twelve months from [August 11, 1980] or such 
longer period limited to twelve months from the date on which fuel 
oil with a sulfur content exceeding 0.30 percent, by weight, is 
first burned at any of the affected Consolidated Edison facilities. 
However, once the use of high sulfur fuel oil has commenced, failure 
to meet any of the conversion dates specified in paragraph (g)(1) of 
this section shall not extend the period of EPA approval.

[[Page 29726]]

    (4) On or before July 1, 1981 the Consolidated Edison Company of 
New York, Inc. shall displace the use of approximately 7.1 million 
gallons of residual oil, as projected on an annual basis, through a 
gas conversion program to be implemented within a two-mile radius of 
the Mabel Dean Bacon High School Annex monitor. Beginning on the 
first day of the month in which fuel oil with a sulfur content 
exceeding 0.30 percent, by weight, is first burned at any of the 
affected Consolidated Edison facilities and continuing for twelve 
months thereafter, the Consolidated Edison Company of New York, Inc. 
shall submit a report to the EPA, on a monthly basis, which 
includes, but is not limited to, the following information regarding 
this program:
    (i) The total gallonage of fuel oil capacity converted 
(projected to an annual amount) as of that date,
    (ii) The potential gallonage from sources at which conversion 
work has begun, and
    (iii) The projected gallonage from sources expected to be 
converted by July 1, 1981.
    (g) The Environmental Protection Agency has approved a New York 
State Implementation Plan revision relating to the SO2 
emission limit for units 4 and 5 of Orange and Rockland Utilities' 
Lovett generating station. The revision which allows Lovett to burn 
coal at units 4 and 5 was submitted by the New York State Department 
of Environmental Conservation (NYSDEC) on September 18, 1990, with 
additional materials submitted on April 12, 1991, and June 3, 1991. 
This action sets the emission limit applicable to the facility to 
1.0 pound per million British thermal units (MMBtu) for units 4 and 
5 if both are operated on coal, or to 1.5 lb/MMBtu for one unit if 
the other is operated on fuel oil, natural gas or is not operated at 
all, as set forth in the Certificates to Operate issued by NYSDEC on 
April 3, 1991. The SO2 emission limit, monitoring and 
recordkeeping requirements pertaining to the SO2 
emissions are incorporated by reference into the Certificates to 
Operate.

    The EPA also proposes to revise 40 CFR 52.1675(e) to conform with 
the new nomenclature in New York's revised Subpart 225-1, and for it to 
read as follows:

    (e) Any exception or variance promulgated by the Commissioner 
under 6 NYCRR Sections 225-1.3 and 1.4 shall not exempt any person 
from the requirements otherwise imposed by 6 NYCRR Subpart 225-1; 
provided that the Administrator may approve such exception or 
variance as a plan revision when the provisions of this part, 
section 110(a)(3)(A) of the Act, and 40 CFR Part 51 (relating to 
approval of and revisions to State implementation plans) have been 
satisfied with respect to such exception or variance.

    The removed sections of 40 CFR 52.1675: (d), (f) and (g), will be 
labeled as reserved.

IV. Proposed Action

    The EPA proposes to approve the revisions to New York's Title 6 of 
the New York Codes, Rules and Regulations Subpart 225-1, ``Fuel 
Composition and Use--Sulfur Limitations'' and Section 200.1, 
``Definitions,'' both effective on April 5, 2013, into New York's SIP 
as strengthening enforcement of the State's air pollution control 
regulations.
    In addition, EPA has determined that the source-specific limits in 
the New York's SIP at 40 CFR 52.1675(d), (f) and (g) have either 
expired or the affected sources have shut down and that the 52.1675 
requirements are therefore superfluous and obsolete. The EPA is 
proposing to remove the source-specific limits from 52.1675(d), (f) and 
(g). The EPA also proposes to revise 40 CFR 52.1675(e) to conform with 
the new nomenclature in New York's revised Subpart 225-1.

V. Incorporation by Reference

    In this rule, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, we are proposing to incorporate by 
reference the provisions described above in Section IV. Proposed 
Action.
    EPA has made, and will continue to make, these documents generally 
available electronically through http://www.regulations.gov and in hard 
copy at the appropriate EPA office (see the ADDRESSES section of this 
preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed 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) and 13563 (76 FR 3821, January 21, 
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175, 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. Thus, Executive Order 13175 does not apply to this 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur oxides.

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

    Dated: June 8, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.
[FR Doc. 2018-13722 Filed 6-25-18; 8:45 am]
 BILLING CODE 6560-50-P