[Federal Register Volume 88, Number 248 (Thursday, December 28, 2023)]
[Rules and Regulations]
[Pages 89593-89595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28343]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2023-0175; FRL-11053-02-R2]


Approval and Promulgation of Implementation Plans; New York; 
Emission Statement Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) submitted by the New York State Department of 
Environmental Conservation (NYSDEC) for purposes 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. 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 Emission Statement rule also 
improves the EPA's and the public access to facility-specific emission 
related data. This action is being taken in accordance with the 
requirements of the Clean Air Act (Act or CAA).

DATES: This final rule is effective on January 29, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R02-OAR-2023-0175. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., Controlled 
Unclassified Information (CUI) (formally referred to as 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 electronically through https://www.regulations.gov.

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: 

Table of Contents

I. Background
II. Public Comments and EPA's Response
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background

    On October 4, 2023 (88 FR 68529), the EPA published a Notice of 
Proposed Rulemaking that proposed to approve a State Implementation 
Plan (SIP) revision submitted by the NYSDEC on March 21, 2022, for 
purposes of enhancing an existing Emission Statement program for 
stationary sources in New York, with a state effective date of December 
18, 2020.
    The SIP revision was submitted by NYSDEC to satisfy the ozone 
nonattainment provision of the Act and allows NYSDEC to more 
effectively plan for and attain the national ambient air quality 
standards (NAAQS). The purpose of 6 NYCRR Subpart 202-2, ``Emission 
Statements,'' is to establish the requirements for annual emission 
statements filed by facilities subject to Title V operating permits 
under the Act. These requirements are set forth in EPA's Air Emission 
Report Requirements rule (AERR). See 40 CFR 51 Subpart A. The SIP 
revision establishes 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 specific details of NYSDEC's SIP submittal and the rationale 
for the EPA's approval action are explained in the EPA's proposed 
rulemaking and are not restated in this final action. For this detailed 
information, the reader is referred to the EPA's October 4, 2023, 
proposed rulemaking. See 88 FR 68529.

II. Public Comments and EPA Responses

    In response to the EPA's October 4, 2023, proposed rulemaking on 
NYSDEC's SIP revision, the EPA received three supportive comments 
during the 30-day public comment period. The specific comments may be 
viewed under Docket ID Number EPA-R02-OAR-2023-0175 on the https://regulations.gov website.

Comment 1

    One commenter indicated that by enacting policies such as this, the 
NYSDEC can better regulate the major sources of air pollution and 
therefore move us toward achieving the NAAQS. Implementing an 
electronic submission system for major polluters will impose more 
responsibility on them to meet these emission requirements, especially 
if these companies are fined for not doing so. Additionally, the 
commenter suggested that this annual record be made available to the 
public.

Response 1

    The EPA acknowledges the commenter's support of the EPA's proposed 
rule. Title 6 NYCRR, Chapter III, Part 202, Subpart 202-2.4(j) 
indicates that the facilities may be subject to enforcement actions, 
including monetary fines for incomplete and inaccurate emission 
statements. The commenter can review it at the EPA Docket ID number 
EPA-R02-OAR-2023-0175. The EPA also recognizes the commenter's request 
for the EPA to make the records publicly available. The public can 
access the annual emission records on NYSDEC's website www.dec.ny.gov/chemical/125566.html#point.

Comment 2 & 3

    Two additional public comments were received, which were supportive 
of the EPA's proposed approval of NYSDEC's SIP revisions. The 
commenters indicated that the revisions to the SIP improve air quality.

Response 2 & 3

    The EPA acknowledges the commenters' support of the EPA's proposed 
rule.

III. Final Action

    The EPA is approving a SIP revision submitted by NYSDEC on March 
21, 2022, for purposes of enhancing an existing Emission Statement 
program for stationary sources in New York. The SIP revision consists 
of amendments to Title 6 NYCRR, Chapter III, part 202, subpart 202-2, 
``Emission Statements,'' with a state effective date of December 18, 
2020.
    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.

IV. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, the EPA is finalizing the incorporation by reference of the 
6 NYCRR Part 202, Subpart 202-2,

[[Page 89594]]

``Emission Statements,'' regulation described in the amendments to 40 
CFR part 52 as discussed in Section I. of this preamble. The EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov and at the EPA Region 2 Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information). Therefore, these 
materials have been approved by the EPA for inclusion in the State 
Implementation Plan, have been incorporated by reference by the EPA 
into that plan, are fully federally enforceable under sections 110 and 
113 of the CAA as of the effective date of the final rulemaking of the 
EPA's approval, and will be incorporated by reference in the next 
update to the SIP compilation.\1\
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    \1\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews

    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) because application of those requirements would be inconsistent 
with the Clean Air Act.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the 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. 
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.'' 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.
    This action is subject to the Congressional Review Act, and the EPA 
will submit a rule report to each House of the Congress and the 
Comptroller General of the United States. 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 February 26, 2024. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, 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.

    For the reasons set forth in the preamble, 40 CFR part 52 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, in the table in paragraph (c), revise the entry 
for ``Title 6, Part 202, Subpart 202-2'' to read as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (c) * * *

[[Page 89595]]



                                EPA-Approved New York State Regulations and Laws
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                                                                State       EPA approval
          State citation                Title/subject      effective date       date              Comments
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                                                  * * * * * * *
Title 6, Part 202, Subpart 202-2..  Emission Statements..      12/18/2020      12/28/2023   EPA approval
                                                                                            finalized at [insert
                                                                                            Federal Register
                                                                                            citation].
 
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[FR Doc. 2023-28343 Filed 12-27-23; 8:45 am]
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