[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Proposed Rules]
[Pages 68529-68532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21971]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Docket No. EPA-R02-OAR-2023-0175; FRL 11053-01-R2]


Approval of Air Quality Implementation Plans; New York; Emission 
Statement Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposal rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve State Implementation Plan (SIP) revisions submitted by New York 
State Department of Environmental Conservation (NYSDEC) for the purpose 
of enhancing an existing emission statement program for stationary 
sources in New York State. The SIP revision consists of amendments to 
regulations in New York's Codes, Rules and Regulations (NYCRR) 
applicable to the emission statements. This SIP revision was submitted 
by NYSDEC to satisfy the ozone nonattainment provision of the Clean Air 
Act (Act or CAA). These provisions establish electronic reporting 
requirements for annual emission statements filed by facilities subject 
to Title V operating permits of the Act beginning in 2022 (for calendar 
year 2021 emission reporting).
    The intended effect is to obtain improved emissions related data 
from facilities located in New York State, allowing NYSDEC to more 
effectively plan for, and attain, the national ambient air quality 
standards (NAAQS). The Emission Statement rule also improves EPA's and 
the public's access to facility specific emission related data.

DATES: Written comments must be received on or before November 3, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2023-0175 at https://www.regulations.gov. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available through www.regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. 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

[[Page 68530]]

additional submission methods, the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Ysabel Banon, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, telephone number (212) 637-3382, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background
    A. Ozone Background
    B. Statutory and Regulatory Requirements for Emission Statements
II. Description of State's Submittal
III. Evaluation of the State's Submittal
IV. Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

A. Ozone Background

    Ozone is a gas that is formed by the reaction of Volatile Organic 
Compound (VOC) and Oxides of Nitrogen (NOX) in the 
atmosphere in the presence of sunlight. Therefore, an emission 
inventory for ozone focuses on the emissions of VOC and NOX 
referred to as ozone precursors. These precursors (VOC and 
NOX) are emitted by many types of pollution sources, 
including point sources such as power plants and industrial emissions 
sources; on-road and off-road mobile sources (motor vehicles and 
engines); and smaller residential and commercial sources, such as dry 
cleaners, auto body shops, and household paints, collectively referred 
to as nonpoint sources (also called area sources).
2008 and 2015 Ozone NAAQS Revisions
    In March 2008, EPA revised the health-based National Ambient Air 
Quality Standard (NAAQS) for ozone to 0.075 parts per million (ppm) 
averaged over an 8-hour time frame (2008 8-hour Ozone Standard). See 73 
FR 16435 (March 27, 2008). In October 2015, the EPA revised this 
standard to 0.070 ppm averaged over an 8-hour time frame (2015 8-hour 
Ozone Standard). See 80 FR 65291 (October 26, 2015).
    On May 21, 2012, the EPA finalized its attainment/nonattainment 
designations for areas across the country with respect to the 2008 8-
hour Ozone Standard and, on July 20, 2012, the designations became 
effective. See 77 FR 30160 (May 21, 2012). The New York-Northern New 
Jersey-Long Island Connecticut metropolitan area (NYMA) was designated 
by the EPA as a ``marginal'' nonattainment area for the 2008 ozone 
NAAQS.\1\ In 2016, the EPA determined that the NYMA did not attain the 
2008 ozone standard by the July 20, 2015, attainment date and was 
reclassified from a ``marginal'' to a ``moderate'' nonattainment area. 
See 81 FR 26697 (May 4, 2016). State Implementation Plans (SIPs) for 
``moderate'' nonattainment areas were due by January 1, 2017. See id. 
On April 30, 2018, the EPA finalized its attainment/nonattainment 
designations for most areas across the country as to the 2015 8-hour 
Ozone Standard, in which the NYMA was designated by the EPA as a 
``moderate'' nonattainment area. See 83 FR 25776 (June 4, 2018). On 
September 23, 2019, the EPA reclassified the NYMA to ``serious'' 
nonattainment as to the 2008 8-hour Ozone Standard. See 84 FR 44238 
(August 23, 2019).
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    \1\ The New York portion of the NYMA, is composed of the five 
boroughs of New York City and the surrounding counties of Nassau, 
Suffolk, Westchester, Rockland and the Shinnecock Indian Nation. See 
40 CFR 81.333
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    Additionally, New York is a member of the Ozone Transport Region 
(OTR) established by Congress in Section 184 of the Act. Pursuant to 
section 184(b)(2), any stationary source that emits or has the 
potential to emit at least 50 tons per year (tpy) of VOC shall be 
considered a major stationary source and subject to the requirement 
which should be applicable to major stationary sources if the area were 
classified as moderate nonattainment area. Thus, States within the OTR 
are subject to SIP requirements in section 182(b) applicable to 
moderate nonattainment areas. Also, section 182(f)(1) of the CAA 
requires that the plan provisions required for major stationary sources 
of VOC also apply to major stationary sources of NOX for 
States with moderate (or worse) ozone nonattainment areas. A major 
stationary source of NOX is defined as stationary facility 
or source of air pollutants which directly emits or has the potential 
to emit 100 tpy or more of NOX. See CAA section 302(j).
    Therefore, the emission statement requirement is extended to 
include sources in attainment area within the OTR that emit, or have 
the potential to emit, 100 tpy or more of NOX or 50 tpy or 
more of VOC.

B. Statutory and Regulatory Requirements for Emission Statement

Annual Reporting of VOC and NOX
    The air quality planning and SIP requirements for ozone 
nonattainment and transport areas are established in Subparts 1 and 2 
of Part D of Title I of the Act, as amended in 1990. The EPA has 
published a ``General Preamble'' and ``Appendices to the General 
Preamble.'' See 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 
1992). These describe how the EPA intends to review SIPs submitted 
under Title I of the Act. EPA has also issued a draft guidance 
document, entitled ``Guidance on the Implementation of an Emission 
Statement Program'' (Emission Statement Guidance), dated July 1992, 
which describes the minimum requirements for approvable emission 
statement programs.
    Section 182(a)(3)(B)(i) of the Act requires States in which all or 
part of any ozone non-attainment area is located to submit SIP 
revisions to EPA by November 15, 1992. The provision requires owner/
operators of stationary sources of VOC and NOX to provide 
the State with a statement, at least annually, of the source's actual 
emissions of VOC and NOX. Sources were to submit the first 
emission statements to their respective States by November 15, 1993. 
Pursuant to the Emission Statement Guidance, if the source emits either 
VOC or NOX at or above levels for which the State Emission 
Statement rule requires reporting, the other pollutant (VOC or 
NOX) from the same facility should be included in the 
emission statement, even if the pollutant is emitted at levels below 
the minimum reporting level.
    Section 182(a)(3)(B)(ii) of the Act allows States to waive, with 
EPA approval, the requirement for an emission statement for classes or 
categories of sources located in nonattainment areas, which emit less 
than 25 tpy of actual plantwide VOC or NOX, provided the 
class or category is included in the base year and periodic inventories 
and emissions are calculated using emission factors established by EPA 
(such as those found in EPA publication AP-42) \2\ or other methods 
acceptable to EPA.
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    \2\ U.S. EPA. 1985. Compilation of Air Pollutants Emission 
Factors Volume I: Stationary Point and Area Sources. Supplement A 
through D. No AP-42, Research Triangle Park, NC. 888p.
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    The required Emission State Program defines how air agencies obtain 
emissions data directly from certain facilities, and these data, along 
with other information, are then reported to EPA as part of SIP 
inventories required under the Act sections 182(a)(1) and 182(a)(3)(A). 
This State program is generally referred to as an emissions statement 
regulation, and it outlines how certain facilities must report 
emissions and facility activity data to an

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air agency, typically a State agency. Reports submitted to air agencies 
must be accompanied by ``a certification that the information 
contained'' in the report is ``accurate to the best knowledge'' of the 
facility.\3\ To properly implement the emissions reporting 
requirements, emissions statement regulations should be coordinated 
carefully with the data elements that are required by EPA (requirements 
at 40 CFR 51.1115 and 40 CFR 51.1315).
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    \3\ US. EPA. 1992. Guidance of the Implementation of an Emission 
Statement Program, Research Triangle Park, NC. Appendix B-2.
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II. Description of State's Submittal

    On March 21, 2022, NYSDEC submitted a SIP to incorporate revisions 
to 6 NYCRR Subpart 202-2, ``Emission Statements''. The purpose of 6 
NYCRR Subpart 202-2 is to establish the requirements for annual 
emission statements filed by facilities subject to Title V operating 
permits under the Act. This provision pertains to requirements for 
nonattainment areas for the purpose of enhancing an existing emission 
statement program for stationary sources in New York. On November 18, 
2020, NYSDEC adopted these amendments, which became State effective on 
December 18, 2020. On September 1, 2022, NYSDEC submitted supplemental 
information to EPA regarding these revisions.
    The requirements for emission statements are set forth in EPA's Air 
Emissions Reporting Requirements rule (AERR). See 40 CFR 51 Subpart A. 
In order to implement the emissions statement requirements referenced 
above, NYSDEC adopted 6 NYCRR Subpart 202-2 on July 15, 1994. NYSDEC 
subsequently revised the provision on April 29, 2005. From 1993 through 
2010, NYSDEC required paper submissions of emission statements. Since 
2011 (for calendar year 2010 emissions reporting), however, facilities 
have also had the option of submitting emission statements via 
electronically through NYSDEC's Air Compliance and Emissions (ACE) 
Electronic Reporting Tool.
    Additional revisions were submitted by NYSDEC in 2007 when the EPA 
approved the Emission Statement SIP revision that enhances the 
reporting requirements for VOC and NOX and expands the 
reporting requirement, based on specified emission thresholds, to 
include CO, SO2, particulate matter measuring 2.5 microns or 
less (PM2.5), particulate matter measuring 10 microns or 
less (PM10), ammonia (NH3), lead (Pb) and lead 
compounds and hazardous air pollutants (HAPs). See FR 61528, (October 
31, 2007). Additionally, the revision improves EPA's and the public's 
access to facility specific emissions related data.
    In NYSDEC's March 21, 2022, submittal, the State is proposing 
revisions to Subpart 202-2 to require electronic submittal of annual 
Emission Statements beginning in 2022 (for calendar year 2021 emissions 
reporting) for facilities subject to Title V of the Act. It is expected 
that electronic reporting will be beneficial for both Title V 
facilities, in the long term, and NYSDEC. These benefits include 
reduced costs, processing time, and improved accuracy and file 
management.
    The State seeks to make two changes to Section 202-2.1 
(``Applicability''). First, a new subdivision 202-2.1(c) mandates the 
electronic submittal of emission statements. The new requirement will 
be included as an enforceable condition in new or renewed Title V 
operating permits issued after January 1, 2021. Second, by reporting 
year 2025, all emission statements will be subject to the electronic 
submittal requirement.
    The State made changes to Section 202-2.3 (``Required contents of 
an emission statement:'') First, the first sentence of paragraph 202-
2.3(a)(1) has been revised to read: ``(A) responsible official must 
sign a form or other legal instrument provided by the department to 
certify the emission statement information.'' Second, subparagraph 202-
2.3(a)(3)(ix) was modified to require that the sum of the percent 
operation by season reported in emission statements must equal 100. 
Third, subparagraph 202-2.3(a)(3)(xii) was modified to State that 
reporting of emissions for processes with source classification codes 
beginning with a 1 or a 2 is optional. If the facilities don't report 
emissions for these processes, NYSDEC will calculate process-level 
emissions based upon the process-level fuel use reported by a facility. 
Fourth, subdivision 202-2.3(d) has been edited to State that facilities 
with Title V operating permits will receive emission statement survey 
forms provided by the State. Fifth, subdivision 202-2.3(e) was revised 
to require that facilities report emissions of SO2, primary 
PM2.5, and primary PM10 for exempt sources during 
periodic inventory years in addition to the pollutants listed in the 
current version of the rule.
    The State also made changes to Section 202-2.4, (``Procedures:''). 
First, Subdivision 202-2.4(a) was repealed and replaced. Second, new 
paragraph 202-2.4(a)(1) and 202-2.4(a)(2) will maintain the current 
April 15 deadline for submitting emissions statements until such time 
that a facility is subject to the electronic reporting requirement. 
Third, new paragraph 202-2.4(a)(3) establishes the following deadlines 
for submitting emission statements under the new electronic submittal 
requirement: (a) March 15 of each year for facilities with three (3) or 
fewer processes listed in their Title V permit; (b) March 31 of each 
year for facilities with four (4) to six (6) processes listed in their 
Title V permit; (c) April 15 of each year for facilities with seven (7) 
to twelve (12) processes listed in their Title V permit; or (d) April 
30 of each year for facilities with thirteen (13) or more processes 
listed in their Title V operating permit. Fourth, new paragraph 202-
2.4(d) sets forth situations in which emission statements may be 
submitted via courier instead of electronic submittal: (a) when data 
cannot be labeled as confidential business information using the 
State's electronic interface in accordance with 6 NYCRR Part 616; or 
(b) a facility receives permission from the State after demonstrating a 
need to submit via courier due to a failure of the electronic reporting 
interface. Fifth, subdivisions 202-2.4(b) and 202-2.4(c) were modified 
to account for the change in the due date for submitting emission 
statements from April 15 of each year to the dates provided in 
paragraph 202-2.4(a)(3).

III. Evaluation of State's Submittals

    EPA reviewed NYSDEC's March 21, 2022, proposed SIP revision to 
update Title 6 NYCRR part 202-2 ``Emission Statement.'' NYSDEC's SIP 
revision meets the minimum requirement outlined on the Emission 
Statement Guidance, Section 4, XX00.050 page 43-45.

IV. Proposed Action

    Based on the EPA's review, the Emission Statement rule contains the 
necessary applicability, compliance, enforcement, and reporting 
requirements for an approvable emission statement program. The EPA is 
proposing to approve the revisions to 6 NYCRR Part 202, Subpart 202-2, 
``Emission Statements,'' with a State effective date of December 18, 
2020, as part of New York's SIP. The EPA is soliciting public comments 
on the issues discussed in this document. These comments will be 
considered before taking final action.

V. Incorporation by Reference

    In this document, EPA is proposing to include regulatory text that 
includes incorporation by reference. In

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accordance with requirements of 1 CFR 51.5, EPA is proposing to 
incorporate by reference revisions to 6 NYCRR Subpart 202-2, ``Emission 
Statement,'' as described in Section II. of this preamble. The EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov and at EPA Region 2 Office (please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 
2023);
     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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) application of those requirements would be inconsistent with the 
Clean Air Act.
    In addition, the SIP is not proposing 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 it 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).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
The EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' The EPA further defines the term fair treatment to mean 
that ``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The NYSDEC did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. The EPA 
did not perform an EJ analysis and did not consider EJ in this action. 
Consideration of EJ is not required as part of this action, and there 
is no information in the record inconsistent with the Stated goal of 
E.O. 12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 52

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

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

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2023-21971 Filed 10-3-23; 8:45 am]
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