[Federal Register Volume 84, Number 98 (Tuesday, May 21, 2019)]
[Rules and Regulations]
[Pages 22972-22982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10479]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2019-0157; FRL-9993-69-Region 2]


Approval of Air Quality Implementation Plans; New York; Cross-
State Air Pollution Rule; NOX Ozone Season Group 2, NOX Annual, and SO2 
Group 1 Trading Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to approve a revision to the New York State Implementation 
Plan (SIP) addressing requirements of the Cross-State Air Pollution 
Rule (CSAPR). Under the CSAPR, large electricity generating units in 
New York are subject to Federal Implementation Plans (FIPs) requiring 
the units to participate in CSAPR federal trading programs for ozone 
season emissions of nitrogen oxides (NOX), annual emissions 
of NOX, and annual emissions of sulfur dioxide 
(SO2). This action approves into New York's SIP the State's 
regulations that replace the default allowance allocation provisions of 
the CSAPR federal trading programs for ozone season NOX, 
annual NOX, and annual SO2 emissions. The 
approval is being issued as a direct final rule without a prior 
proposed rule because EPA views it as uncontroversial and does not 
anticipate adverse comment.

DATES: This direct final rule will be effective on June 20, 2019, 
without further notice, unless the EPA receives adverse comment by June 
20, 2019. If EPA receives adverse comment, we will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2019-0157, 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be edited or withdrawn.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, 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:  Kenneth Fradkin, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3702, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking today?

[[Page 22973]]

II. Background on CSAPR and CSAPR-Related SIP Revisions
III. Criteria for Approval of CSAPR-Related SIP Revisions
IV. New York's Submittals and EPA's Analysis
V. EPA's Action on New York's Submittals
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. What action is EPA taking today?

    The EPA is taking direct final action to approve New York's 
November 30, 2018 SIP submittal concerning CSAPR \1\ trading programs 
for ozone-season emissions of NOX, annual emissions of 
NOX, and annual emissions of SO2. Large Electric 
Generating Units (EGUs) in New York are subject to CSAPR FIPs that 
require the units to participate in the federal CSAPR NOX 
Ozone Season Group 2 Trading Program, the federal CSAPR NOX 
Annual Trading Program, and the federal CSAPR SO2 Group 1 
Trading Program. CSAPR provides a process for the submission and 
approval of SIP revisions to replace certain provisions of the CSAPR 
FIPs while the remaining FIP provisions continue to apply. This type of 
CSAPR SIP is termed an abbreviated SIP.
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    \1\ Federal Implementation Plans; Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and 
52.39 and 40 CFR part 97).
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    The New York State Department of Environmental Conservation (DEC) 
amended portions of Title 6 of the New York Codes, Rules and 
Regulations (6 NYCRR) to incorporate CSAPR requirements into the 
State's rules and allow the DEC to allocate CSAPR allowances to 
regulated entities in New York. 6 NYCRR Part 243, ``Transport Rule 
NOX Ozone Season Trading Program,'' has been repealed and 
replaced in its entirety with a new rule, 6 NYCRR Part 243, ``CSAPR 
NOX Ozone Season Group 2 Trading Program.'' 6 NYCRR Part 
244, ``Transport Rule NOX Annual Trading Program,'' has been 
repealed and replaced in its entirety with a new rule, 6 NYCRR Part 
244, ``CSAPR NOX Annual Trading Program.'' 6 NYCRR Part 245, 
``Transport Rule SO2 Group 1 Trading Program,'' has also 
been repealed and replaced in its entirety with a new rule, 6 NYCRR 
Part 245, ``CSAPR SO2 Group 1 Trading Program.'' Attendant 
revisions were made to 6 NYCRR Part 200, ``General Provisions,'' to 
update the list of referenced materials at Subpart 200.9 that are cited 
in the amended New York regulations. The EPA is taking direct final 
action to approve into the New York SIP the revised versions of 6 NYCRR 
Parts 200 (Subpart 200.9), 243, 244, and 245 included in the November 
30, 2018 submission.
    The EPA is also taking direct final action to repeal from the SIP 
previous versions of 6 NYCRR Part 243, 6 NYCRR Part 244, and 6 NYCRR 
Part 245 which implemented New York's discontinued CAIR program. New 
York adopted amendments to 6 NYCRR Part 243, 6 NYCRR Part 244, and 6 
NYCRR Part 245 that repealed and replaced CAIR trading program rules 
with CSAPR trading rules on November 10, 2015. Subsequently, on 
November 11, 2018, New York adopted amendments to 6 NYCRR Part 243, 6 
NYCRR Part 244, and 6 NYCRR Part 245 that repealed and replaced the 
November 15, 2015 adopted rules that implemented New York's CSAPR 
program with new versions of New York's CSAPR trading program rules. 
The rules being repealed from the SIP are 6 NYCRR Part 243, ``CAIR 
NOX Ozone Season Trading Program,''; 6 NYCRR Part 244, 
``CAIR NOX Annual Trading Program,''; and 6 NYCRR Part 245, 
``CAIR SO2 Trading Program.''
    The EPA is also taking direct final action to approve into the SIP 
a revised version of 6 NYCRR Part 200 (Subpart 200.1) that was 
submitted to the EPA on July 23, 2015 to address updated definitions at 
Part 200.1(f) that were associated with a repeal of 6 NYCRR Part 203, 
``Indirect Sources of Air Contamination.''
    The revised versions of 6 NYCRR Parts 200 (Subpart 200.9), 243, 
244, and 245 included in the November 30, 2018 SIP submission replace 
the previous versions of those rules that were included in a December 
1, 2015 SIP submission. The EPA identified deficiencies in the December 
1, 2015 submission but on November 20, 2017 conditionally approved 
those previous versions of Parts 200, 244, and 245 (but not Part 243) 
into the SIP (82 FR 57362, December 5, 2017). In a July 6, 2017 letter 
to the EPA, New York committed to submitting a SIP revision that 
addressed the identified deficiencies by December 29, 2017. However, 
New York's response to the conditional approval was not submitted to 
the EPA by December 29, 2017. The November 30, 2018 SIP submittal 
addresses the identified deficiencies, but was submitted approximately 
11 months late, so the conditional approval is treated as a 
disapproval.\2\
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    \2\ In reliance on the December 5, 2017 conditional approval, 
allocations of CSAPR NOX Annual and CSAPR SO2 
Group 1 allowances for the 2017, 2018, 2019, and 2020 control 
periods were based on the state-determined allocation methodology. 
Following the state's failure to submit by December 29, 2017, 
allocations of allowances for those programs for the 2021 and 2022 
control periods were based on the default allowance allocation 
provisions in the federal trading program regulations.
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    The EPA did not take action on the previous version of 6 NYCRR Part 
243, ``Transport Rule NOX Ozone Season Trading Program,'' 
included in New York's December 1, 2015 submission. Following that 
submission, the EPA finalized the CSAPR Update rule\3\ to address 
Eastern states' interstate air pollution mitigation obligations with 
regard to the 2008 Ozone National Ambient Air Quality Standard (NAAQS). 
Among other things, starting in 2017, the CSAPR Update rule required 
New York EGUs to participate in the new CSAPR NOX Ozone 
Season Group 2 Trading Program instead of the earlier CSAPR 
NOX Ozone Season Trading Program (now renamed the ``Group 
1'' program) and replaced the ozone season budget for New York with a 
lower budget developed to address the revised and more stringent 2008 
Ozone NAAQS. In a July 14, 2016 letter to the EPA, New York indicated 
that the State would revise 6 NYCRR Part 243 to conform with the final 
CSAPR Update. As indicated earlier in this section New York repealed 6 
NYCRR Part 243 and replaced the rule in its entirety with a new rule, 6 
NYCRR Part 243, ``CSAPR NOX Ozone Season Group 2 Trading 
Program''.
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    \3\ 81 FR 74504 (October 26, 2016).
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    This direct final action approves into New York's SIP state-
determined allowance allocation procedures for ozone-season 
NOX allowances that would replace EPA's default allocation 
procedures for the control periods in 2021 and beyond. Additionally, 
EPA is taking direct final action to approve into New York's SIP state-
determined allowance allocation procedures for annual NOX 
and SO2 allowances that would replace EPA's default 
allocation procedures for the control periods in 2023 and beyond. The 
approval of this SIP revision does not alter any provision of either 
the CSAPR NOX Ozone Season Group 2 Trading Program, the 
CSAPR NOX Annual Trading Program, or the CSAPR 
SO2 Group 1 Trading Program as applied to New York units 
other than the allowance allocation provisions. The FIP provisions 
requiring those units to participate in the programs (as modified by 
this SIP revision) remain in place.
    Section II of this document summarizes relevant aspects of the 
CSAPR federal trading programs and FIPs as well as the range of 
opportunities states have to submit SIP revisions to modify or replace 
the FIP requirements while continuing to rely on CSAPR's trading 
programs to address

[[Page 22974]]

the states' obligations to mitigate interstate air pollution. Section 
III describes the specific criteria for approval of such SIP revisions. 
Section IV contains the EPA's analysis of New York's SIP submittal, and 
Section V sets forth EPA's action on New York's submittals.

II. Background on CSAPR and CSAPR-Related SIP Revisions

    The EPA issued CSAPR in July 2011 to address the requirements of 
CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air 
pollution. As amended (including the 2016 CSAPR Update), CSAPR requires 
27 Eastern states to limit their statewide emissions of SO2 
and/or NOX to mitigate transported air pollution unlawfully 
impacting other states' ability to attain or maintain four NAAQS: The 
1997 annual PM2.5 NAAQS, the 2006 24-hour PM2.5 
NAAQS, the 1997 Ozone NAAQS, and the 2008 Ozone NAAQS. The CSAPR 
emissions limitations are defined in terms of maximum statewide 
``budgets'' for emissions of annual SO2, annual 
NOX, and/or ozone season NOX by each covered 
state's large EGUs. The CSAPR state budgets are implemented in two 
phases of generally increasing stringency, with the Phase 1 budgets 
applying to emissions in 2015 and 2016, and the Phase 2 (and CSAPR 
Update) budgets applying to emissions in 2017 and later years. As a 
mechanism for achieving compliance with the emissions limitations, 
CSAPR establishes five federal emissions trading programs: A program 
for annual NOX emissions, two geographically separate 
programs for annual SO2 emissions, and two geographically 
separate programs for ozone season NOX emissions. CSAPR also 
establishes FIP requirements applicable to the large EGUs in each 
covered state. The CSAPR FIP provisions require each state's EGUs to 
participate in up to three of the five CSAPR trading programs.
    CSAPR includes provisions under which states may submit and the EPA 
will approve SIP revisions to modify or replace the CSAPR FIP 
requirements while allowing states to continue to meet their transport-
related obligations using either CSAPR's federal emissions trading 
programs or state emissions trading programs integrated with the 
federal programs.\4\ Through such a SIP revision, a state may replace 
EPA's default provisions for allocating emission allowances among the 
state's units, employing any state-selected methodology to allocate or 
auction the allowances, subject to timing criteria and limits on 
overall allowance quantities. In the case of CSAPR's federal trading 
programs for ozone season NOX emissions (or integrated state 
trading programs), a state may also expand trading program 
applicability to include certain smaller EGUs.\5\ If a state wants to 
replace CSAPR FIP requirements with SIP requirements under which the 
state's units participate in a state trading program that is integrated 
with and identical to the federal trading program even as to the 
allocation and applicability provisions, the state may submit a SIP 
revision for that purpose as well. However, no emissions budget 
increases or other substantive changes to the trading program 
provisions are allowed. A state whose units are subject to multiple 
CSAPR FIPs and federal trading programs may submit SIP revisions to 
modify or replace either some or all of those FIP requirements.
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    \4\ See 40 CFR 52.38, 52.39. States also retain the ability to 
submit SIP revisions to meet their transport-related obligations 
using mechanisms other than the CSAPR federal trading programs or 
integrated state trading programs.
    \5\ States covered by both the CSAPR Update and the 
NOX SIP Call have the additional option to expand 
applicability under the CSAPR NOX Ozone Season Group 2 
Trading Program to include non-EGUs that would have participated in 
the former NOX Budget Trading Program.
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    States can submit two basic forms of CSAPR-related SIP revisions 
effective for emissions control periods in 2017 or later years.\6\ 
Specific criteria for approval of each form of SIP revision are set 
forth in the CSAPR regulations, as described in section III below. 
Under the first alternative--an ``abbreviated'' SIP revision--a state 
may submit a SIP revision that upon approval replaces the default 
allowance allocation and/or applicability provisions of a CSAPR federal 
trading program for the state.\7\ Approval of an abbreviated SIP 
revision leaves the corresponding CSAPR FIP and all other provisions of 
the relevant federal trading program in place for the state's units.
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    \6\ CSAPR also provides for a third, more streamlined form of 
SIP revision that is effective only for control periods in 2016 and 
is not relevant here. See Sec.  52.38(a)(3), (b)(3), (b)(7); Sec.  
52.39(d), (g).
    \7\ Sec.  52.38(a)(4), (b)(4), (b)(8); Sec.  52.39(e), (h).
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    Under the second alternative--a ``full'' SIP revision--a state may 
submit a SIP revision that upon approval replaces a CSAPR federal 
trading program for the state with a state trading program integrated 
with the federal trading program, so long as the state trading program 
is substantively identical to the federal trading program or does not 
substantively differ from the federal trading program except as 
discussed above with regard to the allowance allocation and/or 
applicability provisions.\8\ For purposes of a full SIP revision, a 
state may either adopt state rules with complete trading program 
language, incorporate the federal trading program language into its 
state rules by reference (with appropriate conforming changes), or 
employ a combination of these approaches.
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    \8\ Sec.  52.38(a)(5), (b)(5), (b)(9); Sec.  52.39(f), (i).
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    The CSAPR regulations identify several important consequences and 
limitations associated with approval of a full SIP revision. First, 
upon the EPA's approval of a full SIP revision as correcting the 
deficiency in the state's SIP that was the basis for a particular set 
of CSAPR FIP requirements, the obligation to participate in the 
corresponding CSAPR federal trading program is automatically eliminated 
for units subject to the state's jurisdiction without the need for a 
separate EPA withdrawal action, so long as the EPA's approval of the 
SIP is full and unconditional.\9\ Second, approval of a full SIP 
revision does not terminate the obligation to participate in the 
corresponding CSAPR federal trading program for any units located in 
any Indian country within the borders of the state, and if and when a 
unit is located in Indian country within a state's borders, the EPA may 
modify the SIP approval to exclude from the SIP, and include in the 
surviving CSAPR FIP instead, certain trading program provisions that 
apply jointly to units in the state and to units in Indian country 
within the state's borders.\10\ Finally, if at the time a full SIP 
revision is approved EPA has already started recording allocations of 
allowances for a given control period to a state's units, the federal 
trading program provisions authorizing the EPA to complete the process 
of allocating and recording allowances for that control period to those 
units will continue to apply, unless the EPA's approval of the SIP 
revision provides otherwise.\11\
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    \9\ Sec.  52.38(a)(6), (b)(10(i); Sec.  52.39(j).
    \10\ Sec.  52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi), 
(b)(9)(vi)-(vii), (b)(10)(i); Sec.  52.39(f)(4)-(5), (i)(4)-(5), 
(j).
    \11\ Sec.  52.38(a)(7), (b)(11)(i); Sec.  52.39(k).
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III. Criteria for Approval of CSAPR-Related SIP Revisions

    Each CSAPR-related abbreviated or full SIP revision must meet the 
following general submittal criteria:
     Timeliness and completeness of SIP submittal. If a state 
wants to replace the default allowance allocation or applicability 
provisions of a CSAPR federal trading program, the complete SIP 
revision must be submitted to the EPA by December 1 of the year before

[[Page 22975]]

the deadlines described below for submitting allocation or auction 
amounts to EPA for the first control period for which the state wants 
to replace the default allocation and/or applicability provisions.\12\ 
This SIP submission deadline is inoperative in the case of a SIP 
revision that seeks only to replace a CSAPR FIP and federal trading 
program with a SIP and a substantively identical state trading program 
integrated with the federal trading program. The SIP submittal 
completeness criteria in section 2.1 of appendix V to 40 CFR part 51 
also apply.
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    \12\ 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii), 
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); Sec.  52.39(e)(2), (f)(6), 
(h)(2), (i)(6).
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    In addition to the general submittal criteria, a CSAPR-related 
abbreviated or full SIP seeking to address the allocation or auction of 
emission allowances must meet the following further criteria:
     Methodology covering all allowances potentially requiring 
allocation. For each federal trading program addressed by a SIP 
revision, the SIP revision's allowance allocation or auction 
methodology must replace both the federal program's default allocations 
to existing units \13\ at 40 CFR 97.411(a), 97.511(a), 97.611(a), 
97.711(a), or 97.811(a) as applicable, and the federal trading 
program's provisions for allocating allowances from the new unit set-
aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a), 
97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), 97.711(b)(1) 
and 97.712(a), or 97.811(b)(1) and 97.812(a), as applicable.\14\ In the 
case of a state with Indian country within its borders, while the SIP 
revision may neither alter nor assume the federal program's provisions 
for administering the Indian country NUSA for the state, the SIP 
revision must include procedures addressing the disposition of any 
otherwise unallocated allowances from an Indian country NUSA that may 
be made available for allocation by the state after EPA has carried out 
the Indian country NUSA allocation procedures.\15\
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    \13\ In the context of the approval criteria for CSAPR-related 
SIP revisions, an ``existing unit'' is a unit for which EPA has 
determined default allowance allocations (which could be allocations 
of zero allowances) in the rulemakings establishing and amending 
CSAPR. Spreadsheets showing EPA's default allocations to existing 
units are posted at https://www.epa.gov/csapr/unit-level-allocations-under-csapr-transport-rule-fips-after-tolling and 
https://www.epa.gov/airmarkets/final-cross-state-air-pollution-rule-update.
    \14\ Sec.  52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii), 
(b)(8)(iii), (b)(9)(iii); Sec.  52.39(e)(1), (f)(1), (h)(1), (i)(1).
    \15\ See Sec. Sec.  97.412(b)(10)(ii), 97.512(b)(10)(ii), 
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
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     Assurance that total allocations will not exceed the state 
budget. For each federal trading program addressed by a SIP revision, 
the total amount of allowances auctioned or allocated for each control 
period under the SIP revision (prior to the addition by EPA of any 
unallocated allowances from any Indian country NUSA for the state) 
generally may not exceed the state's emissions budget for the control 
period less the sum of the amount of any Indian country NUSA for the 
state for the control period and any allowances already allocated to 
the state's units for the control period and recorded by EPA.\16\ Under 
its SIP revision, a state is free to not allocate allowances to some or 
all potentially affected units, to allocate or auction allowances to 
entities other than potentially affected units, or to allocate or 
auction fewer than the maximum permissible quantity of allowances and 
retire the remainder. Under the CSAPR NOX Ozone Season Group 
2 Trading Program only, additional allowances may be allocated if the 
state elects to expand applicability to non-EGUs that would have been 
subject to the former NOX Budget Trading Program established 
for compliance with the NOX SIP Call.\17\
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    \16\ Sec.  52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A), 
(b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A); Sec.  52.39(e)(1)(i), 
(f)(1)(i), (h)(1)(i), (i)(1)(i).
    \17\ Sec.  52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
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     Timely submission of state-determined allocations to EPA. 
The SIP revision must require the state to submit to the EPA the 
amounts of any allowances allocated or auctioned to each unit for each 
control period (other than allowances initially set aside in the 
state's allocation or auction process and later allocated or auctioned 
to such units from the set-aside amount) by the following deadlines 
shown in Tables 1 and 2 below.\18\ Note that the submission deadlines 
differ for amounts allocated or auctioned to units considered existing 
units for CSAPR purposes and amounts allocated or auctioned to other 
units.
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    \18\ Sec.  52.38(a)(4)(i)(B)-(C), (a)(5)(i)(B)-(C), 
(b)(4)(ii)(B)-(C), (b)(5)(ii)(B)-(C), (b)(8)(iii)(B)-(C), 
(b)(9)(iii)(B)-(C); Sec.  52.39(e)(1)(ii)-(iii), (f)(1)(ii)-(iii), 
(h)(1)(ii)-(iii), (i)(1)(ii)-(iii).

  Table 1--CSAPR NOX Annual, CSAPR NOX Ozone Season Group 1, CSAPR SO2
             Group 1, and CSAPR SO2 Group 2 Trading Programs
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                                                        Deadline for
                                   Year of the      submission to EPA of
             Units                control period       allocations or
                                                      auction results
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Existing......................  2017 and 2018....  June 1, 2016.
                                2019 and 2020....  June 1, 2017.
                                2021 and 2022....  June 1, 2018.
                                2023 and later     June 1 of the fourth
                                 years.             year before the year
                                                    of the control
                                                    period.
Other.........................  All years........  July 1 of the year of
                                                    the control period.
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         Table 2--CSAPR NOX Ozone Season Group 2 Trading Program
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                                                        Deadline for
                                   Year of the      submission to EPA of
             Units                control period       allocations or
                                                      auction results
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Existing......................  2019 and 2020....  June 1, 2018.
                                2021 and 2022....  June 1, 2019.
                                2023 and 2024....  June 1, 2020.
                                2025 and later     June 1 of the fourth
                                 years.             year before the year
                                                    of the control
                                                    period.
Other.........................  All years........  July 1 of the year of
                                                    the control period.
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     No changes to allocations already submitted to EPA or 
recorded. The SIP revision must not provide for any change to the 
amounts of allowances allocated or auctioned to any unit after those 
amounts are submitted to EPA or any change to any allowance allocation 
determined and recorded by EPA under

[[Page 22976]]

the federal trading program regulations.\19\
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    \19\ Sec.  52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D), 
(b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D); Sec.  
52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
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     No other substantive changes to federal trading program 
provisions. The SIP revision may not substantively change any other 
trading program provisions, except in the case of a SIP revision that 
also expands program applicability as described below.\20\ Any new 
definitions adopted in the SIP revision (in addition to the federal 
trading program's definitions) may apply only for purposes of the SIP 
revision's allocation or auction provisions.\21\
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    \20\ Sec.  52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8), (b)(9); 
Sec.  52.39(e), (f), (h), (i).
    \21\ Sec.  52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii), 
(b)(8)(iv), (b)(9)(iv); Sec.  52.39(e)(1), (f)(2), (h)(1), (i)(2).
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    In addition to the general submittal criteria, a CSAPR-related 
abbreviated or full SIP revision seeking to expand applicability under 
their integrated state trading programs (which is allowed for CSAPR's 
NOX ozone season programs only) must meet the following 
further criteria:
     Only EGUs with nameplate capacity of at least 15 MWe.\22\ 
The SIP revision may expand applicability only to additional fossil 
fuel-fired boilers or combustion turbines serving generators producing 
electricity for sale, and only by lowering the generator nameplate 
capacity threshold used to determine whether a particular boiler or 
combustion turbine serving a particular generator is a potentially 
affected unit. The nameplate capacity threshold adopted in the SIP 
revision may not be less than 15 MWe.\23\ In addition or alternatively, 
applicability may be extended to non-EGUs that would have been subject 
to the former NOX Budget Trading Program established for 
compliance with the NOX SIP Call.\24\
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    \22\ Megawatts of electricity
    \23\ Sec.  52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
    \24\ Sec.  52.38(b)(8)(ii), (b)(9)(ii).
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     No other substantive changes to federal trading program 
provisions. The SIP revision may not substantively change any other 
trading program provisions, except in the case of a SIP revision that 
also addresses the allocation or auction of emission allowances as 
described above.\25\
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    \25\ Sec.  52.38(b)(4), (b)(5), (b)(8), (b)(9).
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    In addition to the general submittal criteria and the other 
applicable criteria described above, a CSAPR-related full SIP revision 
must meet the following further criteria:
     Complete, substantively identical trading program 
provisions. The SIP revision must adopt complete state trading program 
regulations substantively identical to the complete federal trading 
program regulations at 40 CFR 97.402 through 97.435, 97.502 through 
97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through 
97.835, as applicable, except as described above in the case of a SIP 
revision that seeks to replace the default allowance allocation and/or 
applicability provisions.\26\
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    \26\ Sec.  52.38(a)(5), (b)(5), (b)(9); Sec.  52.39(f), (i).
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     Only non-substantive substitutions for the term ``State.'' 
The SIP revision may substitute the name of the state for the term 
``State'' as used in the federal trading program regulations, but only 
to the extent that EPA determines that the substitutions do not 
substantively change the trading program regulations.\27\
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    \27\ Sec. Sec.  52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v); 
52.39(f)(3), (i)(3).
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     Exclusion of provisions addressing units in Indian 
country. The SIP revision may not impose requirements on any unit in 
any Indian country within the state's borders and must not include the 
federal trading program provisions governing allocation of allowances 
from any Indian country NUSA for the state.\28\
---------------------------------------------------------------------------

    \28\ Sec. Sec.  52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi); 
52.39(f)(4), (i)(4).
---------------------------------------------------------------------------

IV. New York's Submittals and EPA's Analysis

A. New York's SIP Submittals

    On November 30, 2018, New York submitted to the EPA an abbreviated 
SIP revision that, if approved, would replace the default allowance 
allocation provisions of the CSAPR NOX Ozone Season Group 2, 
CSAPR NOX Annual, and CSAPR SO2 Group 1 Trading 
Programs for the state's EGUs with provisions establishing state-
determined allocations but would leave the corresponding CSAPR FIPs and 
all other provisions of the trading programs in place.
    New York's allowance allocation procedures for ozone season 
NOX allowances would replace EPA's default allocation 
procedures for the control periods in 2021 and beyond. New York's 
allowance allocation procedures for annual NOX and 
SO2 allowances would replace EPA's default allocation 
procedures for the control periods in 2023 and beyond.
    The November 30, 2018 SIP submittal includes the following adopted 
state rules: 6 NYCRR Part 243, ``CSAPR NOX Ozone Season 
Group 2 Trading Program,'' 6 NYCRR Part 244, ``CSAPR NOX 
Annual Trading Program,'' and 6 NYCRR Part 245, ``CSAPR SO2 
Group 1 Trading Program.'' Previous versions of the rules, i.e., 6 
NYCRR Part 243, ``Transport Rule NOX Ozone Season Trading 
Program, 6 NYCRR Part 244, ``Transport Rule NOX Annual 
Trading Program,'' and 6 NYCRR Part 245, ``Transport Rule 
SO2 Group 1 Trading Program,'' have been repealed and 
replaced in their entirety with the new rules. Attendant revisions were 
made to 6 NYCRR Part 200, Subpart 200.9, ``General Provisions, 
Referenced Material,'' to update the list of referenced material that 
are cited in the amended New York regulations. The regulations were 
adopted on November 11, 2018, and effective on January 2, 2019. New 
York's Parts 243, 244 and 245, submitted to EPA on November 30, 2018, 
allow the State to replace the provisions of the CSAPR NOX 
Ozone Season Group 2, CSAPR NOX Annual, and CSAPR 
SO2 Group 1 trading program allocation methodology with its 
own methodology. Parts 243, 244 and 245 apply to units that serve an 
electrical generator with a nameplate capacity equal to or greater than 
25 megawatts of electrical output and sell any amount of electricity. 
The control period for Part 243 runs from May 1 to September 30. The 
control periods for Parts 244 and 245 run from January 1 to December 
31. DEC would allocate CSAPR NOX Ozone Season Group 2 
allowances beginning with the 2021 control period; and CSAPR 
NOX Annual and SO2 Group 1 allowances beginning 
with the 2023 control period.
    For existing units, New York's allocation methodology is based on 
the average of recent emissions (i.e., the average of the three last 
years for which data is available) from all New York Transport Rule 
units. Five percent of the statewide budgets for annual emissions of 
SO2, annual emissions of NOX, and ozone season 
emissions of NOX would be set aside for new units, and the 
remainder of the statewide budgets, but at least ten percent, will be 
allocated to the Energy Efficiency and Renewable Energy Technology 
(EERET) account. If the allocation to the EERET account would be less 
than the prescribed minimum after allocations to existing units based 
on the 3-year average of emissions and an allocation of five percent to 
the new unit set-aside, allocations to existing units would be reduced 
proportionally by the amounts necessary to ensure that ten percent of 
the budget is allocated to the EERET account.
    The DEC will distribute all allowances at no cost except for 
allowances held in the EERET account, which will be administered by the 
New York State Energy Research and

[[Page 22977]]

Development Authority (NYSERDA). The sale of allowances by NYSERDA will 
be used to fund energy efficiency projects, renewable energy, or clean 
energy technology. Any EERET allowances that are not sold or 
distributed by NYSERDA within 12 months of the initial allocation to 
the EERET account will be returned to the DEC for retirement or 
reallocation.
    On July 23, 2015, New York submitted a SIP submittal, which 
included a revised version of 6 NYCRR Part 200 (Subpart 200.1) that was 
adopted by the State. The definition for ``Air contamination source or 
emission source'' under Subdivision 200.1(f) was revised to address the 
repeal of 6 NYCRR Part 203, ``Indirect Sources of Air Contamination''. 
The regulation was adopted on April 18, 2013, a notice of adoption was 
filed on April 19, 2013, and the regulation became effective on May 19, 
2013.

B. EPA's Analysis of New York's Submittals

A. November 30, 2018 Submittal
1. Timeliness and Completeness of New York's SIP Submittal
    New York's SIP revision seeks to establish state-determined 
allocations starting with the 2021 control period for the CSAPR 
NOX Ozone Season Group 2 trading program and the 2023 
control period for the CSAPR NOX Annual and SO2 
Group 1 trading programs. For the NOX Annual and 
SO2 Group 1 trading programs, under 40 CFR 52.38(a)(4)(i)(B) 
and 52.39(e)(1)(ii), the deadline for submission of state-determined 
allocations for the 2023 control periods is June 1, 2019, which under 
52.38(a)(4)(ii) and 52.39(e)(2) makes December 1, 2018, the deadline 
for submission to the EPA of a complete SIP revision establishing 
state-determined allocations for those control periods. For the 
NOX Ozone Season Group 2 trading program, under 40 CFR 
52.38(b)(8)(iii)(B) the allocation submission deadline for the 2021 
control period is June 1, 2019, triggering a December 1, 2018 deadline 
for a SIP submittal under 40 CFR 52.38(b)(8)(iv). New York submitted 
its SIP revision to EPA by letter dated and delivered electronically on 
November 30, 2018, and EPA has determined that the submittal complies 
with the applicable minimum completeness criteria of 40 CFR part 51, 
Appendix V, Section 2.1. New York has therefore met the requirements 
for timeliness and completeness criteria of its CSAPR SIP submittal for 
all three programs.
2. Methodology Covering All Allowances Potentially Requiring Allocation
    Sections 243.3 through 243.6, 244.3 through 244.6, and 245.3 
through 245.6 of the New York rules provide the allocation methodology 
adopted by New York in the SIP revision. Sections 243.3 through 243.6 
replace the provisions of 40 CFR 97.811(a), 97.811(b)(1), and 97.812(a) 
for allocations of CSAPR NOX Ozone Season Group 2 
allowances; Sections 244.3 through 244.6 replace the provisions of 40 
CFR 97.411(a), 97.411(b)(1), and 97.412(a) for allocations of 
NOX Annual allowances; and Sections 245.3 through 245.6 
replace the provisions of 40 CFR 97.611(a), 97.611(b)(1), and 97.612(a) 
for allocations of SO2 Group 1 allowances. New York's 
methodology addresses allocation of allowances that under the default 
allocation provisions for the federal trading programs would be 
allocated to existing units as well as allowances that would be 
allocated to new units from the new unit set-asides established for New 
York under the federal trading programs. New York's rules also include 
provisions for the disposition of any otherwise unallocated Indian 
country new unit set-aside allowances. New York's rules therefore meet 
the conditions under 40 CFR 52.38(a)(4)(i), 52.38(b)(8)(iii), 
52.39(e)(1), 97.412(b)(10)(ii), 97.612(b)(10)(ii), and 
97.812(b)(10)(ii) that the state's allocation methodology must cover 
all allowances potentially requiring allocation by the state.
3. Assurance That Total Allocations Will Not Exceed the State Budget
    Sections 243.3, CSAPR NOX Ozone Season Group 2 Trading 
Program budgets, 244.3, CSAPR NOX Annual Trading Program 
budgets, and 245.3, CSAPR SO2 Group 1 Trading Program 
budgets, set forth the total amounts of CSAPR NOX Ozone 
Season Group 2 allowances, CSAPR NOX Annual allowances, and 
CSAPR SO2 Group 1 allowances to be allocated to New York 
units for each control period under the state trading programs.
    Section 243.3 provides for allowance allocations equal to New 
York's NOX Ozone Season Group 2 trading budget at 40 CFR 
97.810(a)(15), which is 5,135 tons, less the amount of the Indian 
country new unit set-aside (5 tons). Section 244.3 provides for 
allowance allocations equal to New York's NOX Annual trading 
budget at 40 CFR 97.410(a)(14), which is 21,722 tons, less the amount 
of the Indian country new unit set-aside (22 tons). Section 245.3 
provides for allowance allocations equal to New York's SO2 
Group 1 budget at 40 CFR 610(a)(9), which is 27,556 tons, less the 
amount of the Indian country new unit set-aside (28 tons). EPA has not 
yet allocated or recorded any allowances to New York units for the 
control periods for which New York's rules would establish a state-
determined allocation methodology. The allocation methodology in New 
York's SIP revision, therefore, meets the conditions under 40 CFR 
52.38(a)(4)(i)(A), 52.38(b)(8)(iii)(A), and 52.39(e)(1)(i) that the 
total amount of allowances allocated under the SIP revision may not 
exceed the state's budget for the control period less the amount of the 
Indian country NUSA for the state and any allowances already allocated 
and recorded by the EPA.
4. Timely Submission of State-Determined Allocations to EPA
    Sections 243.4, 244.4, and 245.4 provide for allowance allocations 
for existing units to be submitted to the EPA. With respect to CSAPR 
NOX Ozone Season Group 2 allowance allocations for existing 
units, Section 243.4 provides that New York will submit allocations for 
the 2021 and 2022 control periods by June 1, 2019; the state will 
submit allocations for the 2023 and 2024 control periods by June 1, 
2020; and by June 1, 2021, and June 1st of each year thereafter, the 
state will submit allocations for the control period in the fourth year 
following the year of the submission deadline. With respect to CSAPR 
NOX Annual and CSAPR SO2 Group 1 allowance 
allocations for existing units, Sections 244.4 and 245.4 provide that 
the state will submit allocations by June 1, 2019,\29\ and by June 1st 
of each year thereafter, for the control period in the fourth year 
following the year of the submission deadline.
---------------------------------------------------------------------------

    \29\ Allowance allocations for the 2023 control period would be 
submitted by June 1, 2019.
---------------------------------------------------------------------------

    With respect to NUSA allowance allocations under all three 
programs, Sections 243.5(a)(7), 244.5(a)(7), and 245.5(a)(7) indicate 
that the state will submit state-determined allocations to the EPA by 
July 1st of the control period.
    New York's SIP revision meets the criteria under 40 CFR 
52.38(a)(4)(i)(B)-(C), 52.38(b)(8)(iii)(B)-(C), and 52.39(e)(1)(ii)-
(iii) requiring that the SIP revision provide for submission of state-
determined allowance allocations to EPA by the deadlines specified in 
those provisions.

[[Page 22978]]

5. No Changes to Allocations Already Submitted to EPA or Recorded
    The New York rules include no provisions allowing alteration of 
allocations after the allocation amounts have been provided to the EPA 
and no provisions allowing alteration of any allocations made and 
recorded by the EPA under the federal trading program regulations, 
thereby meeting the condition under 40 CFR 52.38(a)(4)(i)(D), 
52.38(b)(8)(iii)(D), and 52.39(e)(1)(iv).
6. No Other Substantive Changes to Federal Trading Program Provisions
    In addition to the allowance allocation provisions in New York's 
rules, Sections 243.1, 244.1 and 245.1 address applicability and 
Sections 243.2, 244.2, and 245.2 set forth relevant definitions. The 
applicability provisions and most of the definitions directly reference 
the corresponding provisions in the federal trading program 
regulations, and the remaining definitions do not conflict with the 
definitions in the federal trading program regulations. The EPA has 
therefore determined that the SIP revision meets the requirements of 40 
CFR 52.38(a)(4), 52.38(b)(8), and 52.39(e) by making no substantive 
changes to the federal trading program regulations beyond the 
provisions addressing allowance allocations.
    Finally, as stated in section I, the EPA conditionally approved 
previous versions of 6 NYCRR Parts 200, 244 and 245 in an action 
published on December 5, 2017 (82 FR 57362), but the state did not 
submit a revised SIP that addressed EPA-identified deficiencies within 
the required time frame New York's November 30, 2018 SIP revision 
approved in this direct final action does fully address the 
deficiencies that the EPA identified in the December 5, 2017 final 
action.
7. Removal of CAIR Trading Program Provisions
    As discussed earlier, New York's CSAPR rules were adopted to 
replace previous versions of 6 NYCRR Part 243, 6 NYCRR Part 244, and 6 
NYCRR Part 245 which implemented New York's discontinued CAIR trading 
programs. For the reasons discussed below, the EPA is also taking 
direct final action to approve the removal of New York's CAIR rules 
from the SIP. The rules being removed from the SIP are 6 NYCRR Part 
243, ``CAIR NOX Ozone Season Trading Program,''; 6 NYCRR 
Part 244, ``CAIR NOX Annual Trading Program,''; and 6 NYCRR 
Part 245, ``CAIR SO2 Trading Program.'' All three of the 
CAIR trading programs have been discontinued and are no longer operated 
by EPA. Electricity generating units (EGUs) in New York now participate 
in the CSAPR NOX Ozone Season Group 2 Trading Program, CSAPR 
NOX Annual Trading Program, and CSAPR SO2 Group 1 
Trading Program.
    In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to 
address transported emissions that significantly contributed to 
downwind states' nonattainment and interfered with maintenance of the 
1997 ozone and PM2.5 NAAQS. CAIR required 28 states, 
including New York, to revise their SIPs to reduce emissions of 
NOX and SO2, precursors to the formation of 
ambient ozone and PM2.5. Under CAIR, EPA provided model 
state rules for separate cap-and-trade programs for annual 
NOX, ozone season NOX, and annual SO2. 
New York submitted, and EPA approved, a CAIR SIP revision based on the 
model state rules establishing CAIR state trading programs for annual 
SO2, annual NOX, and ozone season NOX 
emissions, with certain non-EGUs included in the state's CAIR ozone 
season NOX trading program. See 73 FR 4109 (January 24, 
2008).
    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately 
remanded the rule to EPA without vacatur to preserve the environmental 
benefits provided by CAIR. North Carolina v. EPA, 531 F.3d 896, 
modified, 550 F.3d 1176 (2008). The ruling allowed CAIR to remain in 
effect temporarily until a replacement rule consistent with the court's 
opinion was developed. While EPA worked on developing a replacement 
rule, the CAIR program continued as planned with the NOX 
annual and ozone season programs beginning in 2009 and the 
SO2 annual program beginning in 2010.
    On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's 
remand, EPA promulgated CSAPR to replace CAIR in order to address the 
interstate transport of emissions contributing to nonattainment and 
interfering with maintenance of the two air quality standards covered 
by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR promulgated 
FIPs requiring EGUs in affected states, including New York, to 
participate in federal trading programs to reduce annual 
SO2, annual NOX, and/or ozone season 
NOX emissions. The rule also contained provisions that would 
sunset CAIR-related obligations on a schedule coordinated with the 
implementation of the CSAPR compliance requirements.
    CSAPR was intended to become effective January 1, 2012; however, 
the timing of CSAPR's implementation was impacted by subsequent 
litigation. CSAPR implementation was stayed during the course of 
litigation in the D.C. Circuit and the Supreme Court, until the D.C. 
Circuit lifted the stay on October 23, 2014. EPA subsequently issued an 
interim final rule on December 3, 2014 (79 FR 71663), setting the 
updated effective date of CSAPR as January 1, 2015.\30\ In accordance 
with the interim final rule, EPA stopped administering the CAIR state 
and federal trading programs with respect to emissions occurring after 
December 31, 2014, and EPA began implementing CSAPR on January 1, 2015.
---------------------------------------------------------------------------

    \30\ EPA solicited comment on the interim final rule and 
subsequently issued a final rule affirming the amended compliance 
schedule after consideration of comments received. 81 FR 13275 
(March 14, 2016).
---------------------------------------------------------------------------

    EPA has not administered the CAIR trading programs since January 1, 
2015, when the CSAPR trading programs replaced the CAIR trading 
programs. The provisions in New York's SIP which were promulgated and 
approved for purposes of implementing the CAIR trading programs in the 
State have not been implemented since that time and cannot be 
implemented now or in the future. Because the EPA no longer administers 
the CAIR trading programs, and therefore New York's own CAIR trading 
program regulations cannot be implemented, removing New York's CAIR 
rules from the state's SIP will have no consequences for any source's 
operations or emissions or for the attainment and maintenance of the 
NAAQS in any area, now or in the future. Accordingly, removal of the 
CAIR rules does not impact the state's continued compliance with 
section CAA 110(a)(2)(D)(i)(I) for any NAAQS. Moreover, consistent with 
CAA section 110(l), the EPA has determined that the removal of New 
York's CAIR trading program rules will not interfere with any 
applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the Clean Air Act.
    Current emission levels in New York further demonstrate that the 
CAIR trading programs are not influencing and would not influence 
affected sources' operations. As shown in Table 3 below, current 
emissions levels are significantly below the CAIR budgets even while 
the CAIR trading programs are no longer being implemented.

[[Page 22979]]



                         Table 3--Comparison of New York CAIR Budgets and 2018 Emissions
                                                     [Tons]
----------------------------------------------------------------------------------------------------------------
                                                                   CAIR phase I    CAIR phase 2        2018
                        Type of emissions                           budget \1\      budget \1\     emissions \2\
----------------------------------------------------------------------------------------------------------------
Ozone season NOX \3\............................................          31,091          27,652           5,790
Annual NOX......................................................          45,617          38,014           9,706
SO2.............................................................         135,139          94,597           4,889
----------------------------------------------------------------------------------------------------------------
\1\ The CAIR budget amounts are from the EPA's proposal to approve New York's CAIR regulations into the SIP. 72
  FR 55723 (Oct. 1, 2007); see also 73 FR 4109 (Jan. 24, 2008) (finalizing approval).
\2\ The 2018 emissions totals are from the EPA's Air Markets Program Database, https://ampd.epa.gov.
\3\ The ozone season NOX budgets and emissions include both EGUs and non-EGUs meeting the applicability criteria
  for New York's former NOX Budget Trading Program.

    EGUs in New York also remain subject to FIPs, as modified by the 
abbreviated SIPs approved in this direct final action, requiring the 
sources to particulate in annual NOX, annual SO2, 
and ozone season NOX \31\ federal trading programs under 
CSAPR and the CSAPR Update that limit emissions from such sources in 
the State. EGUs also continue to be subject to part 75 monitoring 
requirements under the current CSAPR trading program rules.
---------------------------------------------------------------------------

    \31\ The D.C. Circuit ultimately remanded New York's CSAPR Phase 
2 budget for ozone season NOX, finding that the 
rulemaking record did not support EPA's determination of a transport 
obligation under the 1997 ozone NAAQS for New York. EME Homer City 
Generation, L.P., v. EPA, 795 F.3d 118, 129-30, (2015). In response, 
EPA withdrew New York's remanded budget in the CSAPR Update 
rulemaking; concurrently, however, EPA promogulated a new emission 
budget to address the 2008 ozone NAAQS, which replaced the 
invalidated CSAPR budget intended to address the 1997 ozone NAAQS. 
81 FR 74524. Thus, EGUs in New York remain subject to a CSAPR 
trading program for ozone-season NOX.
---------------------------------------------------------------------------

    The EPA notes that New York's CAIR trading program for ozone season 
NOX addressed not only the state's transport obligation 
under the 1997 ozone NAAQS, but also New York's ongoing obligations 
under the NOX SIP Call.\32\ Under the NOX SIP 
Call the New York SIP must (1) include enforceable control measures for 
ozone season NOX mass emissions from large EGUs and large 
non-EGUs and (2) require those sources to monitor and report ozone 
season NOX emissions, which may be in accordance with 40 CFR 
part 75. See 40 CFR 51.121(f)(2) and (i).
---------------------------------------------------------------------------

    \32\ The NOX SIP Call addresses states' transport 
obligations under the 1979 ozone NAAQS.
---------------------------------------------------------------------------

    With respect to the NOX SIP Call requirement that the 
SIP include enforceable control measures to limit ozone season 
NOX, New York is currently subject to the federal CSAPR 
trading program for ozone season NOX that addresses these 
requirements as to EGUs, but because New York's non-EGUs are not 
subject to that CSAPR trading program, the state must meet this 
requirement for non-EGUs through other SIP provisions. New York's SIP 
has not included enforceable control measures for these non-EGUs since 
2015, when EPA began implementing the CSAPR trading programs and 
stopped administering the CAIR trading programs. Thus, this gap in SIP 
coverage was caused by EPA's discontinuation of the CAIR trading 
programs and predates the SIP submittal at issue in this action. 
Removing the state's CAIR rules from the SIP at this time will not 
exacerbate or otherwise affect this pre-existing lack of enforceable 
control measures in the SIP, and as noted above, the removal will have 
no impact on source operations or emissions.
    As to the requirement for sources to monitor and report ozone 
season NOX emissions under the NOX SIP Call, 
removal of the state's CAIR rules from the state's SIP does not 
eliminate the state's current requirements for EGUs and non-EGUs to 
monitor and report their ozone season NOX emissions, as 
required under the NOX SIP Call. New York's SIP still 
includes the state's NOX Budget Trading Program rules, and 
those rules continue to require, at 6 NYCRR Part 204, that EGUs and 
non-EGUs monitor and report ozone season NOX emissions under 
part 75 even though EPA is no longer administering the trading program 
provisions of the state's rules. Thus, removal of the state's CAIR 
rules for ozone season NOX emissions from New York's SIP 
will not eliminate the provisions for monitoring that are required by 
the NOX SIP Call because the SIP will still include 
equivalent ozone season NOX monitoring provisions in the 
state's NOX Budget Trading Program rules.
    Accordingly, EPA finds that it is appropriate to approve the 
rescission of New York's CAIR rules from the SIP.
B. July 23, 2015 Submittal
    The July 23, 2015 New York SIP submittal included a revised version 
of 6 NYCRR Part 200 (Subpart 200.1), which modified the definition of 
``Air contamination source or emission source'' at Subdivision 
200.1(f). The regulation was adopted on April 18, 2013, the notice of 
adoption was filed on April 19, 2013 and regulation became effective on 
May 19, 2013. The SIP submittal was deemed administratively complete by 
operation of law on January 23, 2016. The EPA is taking direct final 
action to approve the July 23, 2015 SIP submittal.

V. EPA's Action on New York's Submittals

    The EPA is taking direct final action to approve the New York SIP 
revision submitted on November 30, 2018 concerning allocations to New 
York units of CSAPR NOX Ozone Season Group 2 allowances for 
the control periods in 2021 and beyond and of CSAPR NOX 
Annual allowances and CSAPR SO2 Group 1 allowances for the 
control periods in 2023 and beyond. This rule approves into the New 
York SIP amendments to 6 NYCRR Parts 243, 244 and 245 that incorporate 
CSAPR requirements into the State rules and allows the DEC to allocate 
CSAPR allowances to regulated entities in New York. The EPA is also 
taking direct final action approving the attendant revisions to 6 NYCRR 
Part 200 (Subpart 200.9) to update the list of referenced materials 
cited in the amended New York regulations. The EPA is taking direct 
final action to approve the New York SIP revision submitted on July 23, 
2015, which included a revised version of 6 NYCRR Part 200 (Subpart 
200.1) to address updated definitions associated with a repeal of 6 
NYCRR Part 203, ``Indirect Sources of Air Contamination''.
    The EPA is also taking direct final action to repeal from the SIP 
previous versions of 6 NYCRR Part 243, 6 NYCRR Part 244, and 6 NYCRR 
Part 245 which implemented New York's discontinued CAIR trading 
program. The rules being repealed from the SIP are 6 NYCRR Part 243, 
``CAIR NOX Ozone Season Trading Program,''; 6 NYCRR Part 
244, ``CAIR NOX Annual Trading Program,'' ; and 6 NYCRR Part 
245, ``CAIR SO2 Trading Program.''

[[Page 22980]]

    Following the approval into the SIP of the revisions to 6 NYCRR 
Parts 200, 243, 244, and 245, allocations of CSAPR NOX Ozone 
Season Group 2 allowances, CSAPR NOX Annual allowances, and 
CSAPR SO2 Group 1 allowances will be made according to the 
provisions of New York's SIP instead of 40 CFR 97.411(a), 97.411(b)(1), 
97.412(a), 97.611(a), 97.611(b)(1), 97.612(a), CFR 97.811(a), 
97.811(b)(1), and 97.812(a). The EPA's action on this SIP revision does 
not alter any provisions of the federal CSAPR NOX Ozone 
Season Group 2 Trading Program, the federal CSAPR NOX Annual 
Trading Program, and the federal CSAPR SO2 Group 1 Trading 
Program as applied to New York units other than the allowance 
allocation provisions, and the FIPs requiring the units to participate 
in the programs (as modified by this SIP revision) remain in place. The 
EPA's is approving Parts 200, 243, 244 and 245 because New York's rules 
meet the requirements of the CAA and EPA's regulations for an 
abbreviated SIP revision and will replace EPA's default allocations of 
CSAPR emission allowances with state-determined allocations, as 
discussed in section IV.A above.

VI. Incorporation By Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of revisions to 
6 NYCRR Parts 200, Subpart 200.1, entitled ``General Provisions, 
Definitions,'' adopted April 18, 2013; 6 NYCRR Part 200, Subpart 200.9, 
entitled ``General Provisions, Referenced Material,'' adopted on 
November 11, 2018; 6 NYCRR Part 243, entitled ``CSAPR NOX 
Ozone Season Group 2 Trading Program,'' adopted November 11, 2018; 6 
NYCRR Part 244, entitled ``CSAPR NOX Annual Trading 
Program,'' adopted November 11, 2018; and NYCRR Part 245, entitled 
``CSAPR SO2 Group 1 Trading Program,'' adopted November 11, 
2018. The EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov, and at the EPA Region 
2 Office. Copies of materials incorporated may be inspected at the 
Environmental Protection Agency, Region 2, Air Programs Branch, 290 
Broadway, New York, New York 10007. 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 
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 
EPA's approval, and will be incorporated by reference in the next 
update of the SIP compilation.\33\
---------------------------------------------------------------------------

    \33\ 62 FR 27968 (May 22, 1997)
---------------------------------------------------------------------------

VII. 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 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 Clean Air Act. 
Accordingly, this proposed 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 Orders 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 Clean Air Act; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 July 22, 2019. 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, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Nitrogen Dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

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


[[Page 22981]]


    Dated: May 2, 2019.
Peter D. Lopez,
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 Sec.  52.1670, paragraph (c) is amended by revising the table 
entries ``Title 6, Part 200, Subpart 200.1'', ``Title 6, Part 200, 
Subpart 200.9'', ``Title 6, Part 243'', ``Title 6, Part 244'', and 
``Title 6, Part 245'' to read as follows:


Sec.  52.1670   Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved New York State Regulations and Laws
----------------------------------------------------------------------------------------------------------------
                                                             State       EPA approval
          State citation              Title/subject     effective date       date               Comments
----------------------------------------------------------------------------------------------------------------
 
Title 6, Part 200, Subpart 200.1.  General Provisions,      05/19/2013         5/21/19  The word odor is removed
                                    Definitions.                                         from the Subpart
                                                                                         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.
                                                                                         EPA is
                                                                                         approving incorporation
                                                                                         by reference of those
                                                                                         documents that are not
                                                                                         already federally
                                                                                         enforceable.
                                                                                         EPA approval
                                                                                         finalized at [insert
                                                                                         Federal Register
                                                                                         citation]
 
                                                  * * * * * * *
Title 6, Part 200, Subpart 200.9.  General Provisions,      01/02/2019         5/21/19   EPA is
                                    Referenced                                           approving reference
                                    Material.                                            documents that are not
                                                                                         Federally enforceable.
                                                                                         EPA approval
                                                                                         finalized at [insert
                                                                                         Federal Register
                                                                                         citation].
 
                                                  * * * * * * *
Title 6, Part 243................  CSAPR NOX Ozone          01/02/2019         5/21/19   EPA approval
                                    Season Group 2                                       finalized at [insert
                                    Trading Program.                                     Federal Register
                                                                                         citation]
Title 6, Part 244................  CSAPR NOX Annual         01/02/2019         5/21/19   EPA approval
                                    Trading Program.                                     finalized at [insert
                                                                                         Federal Register
                                                                                         citation]
Title 6, Part 245................  CSAPR SO2 Group 1        01/02/2019         5/21/19   EPA approval
*................................   Trading Program.                 *             * *   finalized at [insert
                                   *..................                                   Federal Register
                                                                                         citation]
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2019-10479 Filed 5-20-19; 8:45 am]
 BILLING CODE 6560-50-P