[Federal Register Volume 89, Number 57 (Friday, March 22, 2024)]
[Proposed Rules]
[Pages 20384-20410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06105]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2020-0455; FRL-11807-01-R2]
Approval and Promulgation of Air Quality Implementation Plans;
New York; Regional Haze State Implementation Plan for the Second
Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the regional haze state implementation plan (SIP) submitted by
the State of New York through the Department of Environmental
Conservation (NYSDEC or New York) on May 12, 2020, as satisfying
applicable requirements under the Clean Air Act (CAA) and the EPA's
Regional Haze Rule for the program's second implementation period. New
York's SIP submission addresses the requirement that states must
periodically revise their long-term strategies for making reasonable
progress towards the national goal of preventing any future, and
remedying any existing, anthropogenic impairment of visibility in
mandatory Class I Federal areas, including regional haze. The SIP
submission also addresses other applicable requirements for the second
implementation period of the regional haze program. The EPA is taking
this action pursuant to sections 110 and 169A of the Clean Air Act.
DATES: Written comments must be received on or before April 22, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2020-0455 at https://www.regulations.gov. 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
[[Page 20385]]
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. 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
CUI 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 CUI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Robert Rutherford, U.S. Environmental
Protection Agency, Air Programs Branch, Region II, 290 Broadway, New
York, New York 10007-1866, at (212) 637-3712 or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. What action is the EPA proposing?
II. Background and Requirements for Regional Haze Plans
A. Regional Haze Background
B. Roles of Agencies in Addressing Regional Haze
III. Requirements for Regional Haze Plans for the Second
Implementation Period
A. Identification of Class I Areas
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
C. Long-Term Strategy for Regional Haze
D. Reasonable Progress Goals
E. Monitoring Strategy and Other Implementation Plan
Requirements
F. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
G. Requirements for State and Federal Land Manager Coordination
IV. The EPA's Evaluation of New York's Regional Haze Submission for
the Second Implementation Period
A. Background on New York's First Implementation Period SIP
Submission
B. New York's Second Implementation Period SIP Submission and
the EPA's Evaluation
C. Identification of Class I Areas
D. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
E. Long-Term Strategy for Regional Haze
a. New York's Response to the Six MANE-VU Asks
b. The EPA's Evaluation of New York's Response to the Six MANE-
VU Asks and Compliance With 40 CFR 51.308(f)(2)(i)
c. Additional Long-Term Strategy Requirements
F. Reasonable Progress Goals
G. Monitoring Strategy and Other Implementation Plan
Requirements
H. Requirements for Periodic Reports Describing Progress Towards
the Reasonable Progress Goals
I. Requirements for State and Federal Land Manager Coordination
V. Environmental Justice Considerations
VI. The EPA's Proposed Action
VII. Statutory and Executive Order Reviews
I. What action is the EPA proposing?
On May 12, 2020, NYSDEC submitted a revision to its SIP to address
regional haze for the second implementation period (``NY RH 2nd
Implementation Period SIP submission''). NYSDEC supplemented its SIP
submission on February 16, 2022. NYSDEC made this SIP submission to
satisfy the requirements of the CAA's regional haze program pursuant to
CAA sections 169A and 169B and 40 CFR 51.308. The EPA is proposing to
find that the NY RH 2nd Implementation Period SIP submission meets the
applicable statutory and regulatory requirements and thus proposes to
approve New York's SIP revision submission.
II. Background and Requirements for Regional Haze Plans
A. Regional Haze Background
In the 1977 CAA Amendments, Congress created a program for
protecting visibility in the nation's mandatory Class I Federal areas,
which include certain national parks and wilderness areas.\1\ CAA 169A.
The CAA establishes as a national goal the ``prevention of any future,
and the remedying of any existing, impairment of visibility in
mandatory class I Federal areas which impairment results from manmade
air pollution.'' CAA 169A(a)(1). The CAA further directs the EPA to
promulgate regulations to assure reasonable progress toward meeting
this national goal. CAA 169A(a)(4). On December 2, 1980, the EPA
promulgated regulations to address visibility impairment in mandatory
Class I Federal areas (hereinafter referred to as ``Class I areas'')
that is ``reasonably attributable'' to a single source or small group
of sources. (45 FR 80084, December 2, 1980). These regulations,
codified at 40 CFR 51.300 through 51.307, represented the first phase
of the EPA's efforts to address visibility impairment. In 1990,
Congress added section 169B to the CAA to further address visibility
impairment; specifically, impairment from regional haze. CAA 169B. The
EPA promulgated the Regional Haze Rule (RHR), codified at 40 CFR
51.308,\2\ on July 1, 1999. (64 FR 35714, July 1, 1999). These regional
haze regulations are a central component of the EPA's comprehensive
visibility protection program for Class I areas.
---------------------------------------------------------------------------
\1\ Areas statutorily designated as mandatory Class I Federal
areas consist of national parks exceeding 6,000 acres, wilderness
areas and national memorial parks exceeding 5,000 acres, and all
international parks that were in existence on August 7, 1977. CAA
162(a). There are 156 mandatory Class I areas. The list of areas to
which the requirements of the visibility protection program apply is
in 40 CFR part 81, subpart D.
\2\ In addition to the generally applicable regional haze
provisions at 40 CFR 51.308, the EPA also promulgated regulations
specific to addressing regional haze visibility impairment in Class
I areas on the Colorado Plateau at 40 CFR 51.309. The latter
regulations are applicable only for specific jurisdictions' regional
haze plans submitted no later than December 17, 2007, and thus are
not relevant here.
---------------------------------------------------------------------------
Regional haze is visibility impairment that is produced by a
multitude of anthropogenic sources and activities which are located
across a broad geographic area and that emit pollutants that impair
visibility. Visibility impairing pollutants include: fine and coarse
particulate matter (PM) (e.g., sulfates, nitrates, organic carbon,
elemental carbon, and soil dust), and their precursors (e.g., sulfur
dioxide (SO2); nitrogen oxides (NOX); and, in
some cases, volatile organic compounds (VOC) and ammonia
(NH3)). Fine particle precursors react in the atmosphere to
form fine particulate matter (PM2.5), which impairs
visibility by scattering and absorbing light. Visibility impairment
reduces the perception of clarity and color, as well as visible
distance.\3\
---------------------------------------------------------------------------
\3\ There are several ways to measure the amount of visibility
impairment, i.e., haze. One such measurement is the deciview, which
is the principal metric used by the RHR. Under many circumstances, a
change in one deciview will be perceived by the human eye to be the
same on both clear and hazy days. The deciview is unitless. It is
proportional to the logarithm of the atmospheric extinction of
light, which is the perceived dimming of light due to its being
scattered and absorbed as it passes through the atmosphere.
Atmospheric light extinction (b\ext\) is a metric used to for
expressing visibility and is measured in inverse megameters (Mm-1).
The EPA's Guidance on Regional Haze State Implementation
Plans for the Second Implementation Period (``2019 Guidance'')
offers the flexibility for the use of light extinction in certain
cases. Light extinction can be simpler to use in calculations than
deciviews, since it is not a logarithmic function. See, e.g., 2019
Guidance at 16, 19, https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and Standards,
Research Triangle Park (August 20, 2019). The formula for the
deciview is 10 ln (b\ext\)/10 Mm-1). 40 CFR 51.301.
---------------------------------------------------------------------------
[[Page 20386]]
To address regional haze visibility impairment, the 1999 RHR
established an iterative planning process that requires both states in
which Class I areas are located and states ``the emissions from which
may reasonably be anticipated to cause or contribute to any impairment
of visibility'' in a Class I area to periodically submit SIP revisions
to address such impairment. CAA 169A(b)(2); \4\ see also 40 CFR
51.308(b), (f) (establishing submission dates for iterative regional
haze SIP revisions); (64 FR 35768, July 1, 1999). Under the CAA, each
SIP submission must contain ``a long-term (ten to fifteen years)
strategy for making reasonable progress toward meeting the national
goal,'' CAA 169A(b)(2)(B); the initial round of SIP submissions also
had to address the statutory requirement that certain older, larger
sources of visibility impairing pollutants install and operate the best
available retrofit technology (BART). CAA 169A(b)(2)(A); 40 CFR
51.308(d), (e). States' first regional haze SIPs were due by December
17, 2007, 40 CFR 51.308(b), with subsequent SIP submissions containing
updated long-term strategies originally due July 31, 2018, and every
ten years thereafter. (64 FR 35768, July 1, 1999). The EPA established
in the 1999 RHR that all states either have Class I areas within their
borders or ``contain sources whose emissions are reasonably anticipated
to contribute to regional haze in a Class I area''; therefore, all
states must submit regional haze SIPs.\5\ (64 FR 35721, July 1, 1999).
---------------------------------------------------------------------------
\4\ The RHR expresses the statutory requirement for states to
submit plans addressing out-of-state class I areas by providing that
states must address visibility impairment ``in each mandatory Class
I Federal area located outside the State that may be affected by
emissions from within the State.'' 40 CFR 51.308(d), (f).
\5\ In addition to each of the fifty states, the EPA also
concluded that the Virgin Islands and District of Columbia must also
submit regional haze SIPs because they either contain a Class I area
or contain sources whose emissions are reasonably anticipated to
contribute regional haze in a Class I area. See 40 CFR 51.300(b),
(d)(3).
---------------------------------------------------------------------------
Much of the focus in the first implementation period of the
regional haze program, which ran from 2007 through 2018, was on
satisfying states' BART obligations. First implementation period SIPs
were additionally required to contain long-term strategies for making
reasonable progress toward the national visibility goal, of which BART
is one component. The core required elements for the first
implementation period SIPs (other than BART) are laid out in 40 CFR
51.308(d). Those provisions required that states containing Class I
areas establish reasonable progress goals (RPGs) that are measured in
deciviews and reflect the anticipated visibility conditions at the end
of the implementation period, including from implementation of states'
long-term strategies. The first planning period RPGs were required to
provide for an improvement in visibility for the most impaired days
over the period of the implementation plan and ensure no degradation in
visibility for the least impaired days over the same period. In
establishing the RPGs for any Class I area in a state, the state was
required to consider four statutory factors: the costs of compliance,
the time necessary for compliance, the energy and non-air quality
environmental impacts of compliance, and the remaining useful life of
any potentially affected sources. CAA 169A(g)(1); 40 CFR 51.308(d)(1).
States were also required to calculate baseline (using the five
year period of 2000-2004) and natural visibility conditions (i.e.,
visibility conditions without anthropogenic visibility impairment) for
each Class I area, and to calculate the linear rate of progress needed
to attain natural visibility conditions, assuming a starting point of
baseline visibility conditions in 2004 and ending with natural
conditions in 2064. This linear interpolation is known as the uniform
rate of progress (URP) and is used as a tracking metric to help states
assess the amount of progress they are making towards the national
visibility goal over time in each Class I area.\6\ 40 CFR
51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States'
long-term strategies must include the ``enforceable emissions
limitations, compliance, schedules, and other measures as necessary to
achieve the reasonable progress goals.'' 40 CFR 51.308(d)(3). In
establishing their long-term strategies, states are required to consult
with other states that also contribute to visibility impairment in a
given Class I area and include all measures necessary to obtain their
shares of the emission reductions needed to meet the RPGs. 40 CFR
51.308(d)(3)(i), (ii). Section 51.308(d) also contains seven additional
factors states must consider in formulating their long-term strategies,
40 CFR 51.308(d)(3)(v), as well as provisions governing monitoring and
other implementation plan requirements. 40 CFR 51.308(d)(4). Finally,
the 1999 RHR required states to submit periodic progress reports--SIP
revisions due every five years that contain information on states'
implementation of their regional haze plans and an assessment of
whether anything additional is needed to make reasonable progress, see
40 CFR 51.308(g), (h)--and to consult with the Federal Land Manager(s)
\7\ (FLMs) responsible for each Class I area according to the
requirements in CAA 169A(d) and 40 CFR 51.308(i).
---------------------------------------------------------------------------
\6\ EPA established the URP framework in the 1999 RHR to provide
``an equitable analytical approach'' to assessing the rate of
visibility improvement at Class I areas across the country. The
start point for the URP analysis is 2004 and the endpoint was
calculated based on the amount of visibility improvement that was
anticipated to result from implementation of existing CAA programs
over the period from the mid-1990s to approximately 2005. Assuming
this rate of progress would continue into the future, EPA determined
that natural visibility conditions would be reached in 60 years, or
2064 (60 years from the baseline starting point of 2004). However,
EPA did not establish 2064 as the year by which the national goal
must be reached. (64 FR 35731-32, July 1, 1999). That is, the URP
and the 2064 date are not enforceable targets, but are rather tools
that ``allow for analytical comparisons between the rate of progress
that would be achieved by the state's chosen set of control measures
and the URP.'' (82 FR 3078, 3084, January 10, 2017).
\7\ The EPA's regulations define ``Federal Land Manager'' as
``the Secretary of the department with authority over the Federal
Class I area (or the Secretary's designee) or, with respect to
Roosevelt-Campobellow International Park, the Chairman of the
Roosevelt-Campobellow International Park Commission.'' 40 CFR
51.301.
---------------------------------------------------------------------------
On January 10, 2017, the EPA promulgated revisions to the RHR, (82
FR 3078, January 10, 2017), that apply for the second and subsequent
implementation periods. The 2017 rulemaking made several changes to the
requirements for regional haze SIPs to clarify States' obligations and
streamline certain regional haze requirements. The revisions to the
regional haze program for the second and subsequent implementation
periods focused on the requirement that States' SIPs contain long-term
strategies for making reasonable progress towards the national
visibility goal. The reasonable progress requirements as revised in the
2017 rulemaking (referred to here as the 2017 RHR Revisions) are
codified at 40 CFR 51.308(f). Among other changes, the 2017 RHR
Revisions adjusted the deadline for States to submit their second
implementation period SIPs from July 31, 2018, to July 31, 2021,
clarified the order of analysis and the relationship between RPGs and
the long-term strategy, and focused on making visibility improvements
on the days with the most anthropogenic visibility impairment, as
opposed to the days with the most visibility impairment overall. The
EPA also revised requirements of the visibility protection program
related to periodic progress reports and FLM consultation.
[[Page 20387]]
The specific requirements applicable to second implementation period
regional haze SIP submissions are addressed in detail below.
The EPA provided guidance to the states for their second
implementation period SIP submissions in the preamble to the 2017 RHR
Revisions as well as in subsequent, stand-alone guidance documents. In
August 2019, the EPA issued ``Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period'' (``2019
Guidance'').\8\ On July 8, 2021, the EPA issued a memorandum containing
``Clarifications Regarding Regional Haze State Implementation Plans for
the Second Implementation Period'' (``2021 Clarifications Memo'').\9\
Additionally, the EPA further clarified the recommended procedures for
processing ambient visibility data and optionally adjusting the URP to
account for international anthropogenic and prescribed fire impacts in
two technical guidance documents: the December 2018 ``Technical
Guidance on Tracking Visibility Progress for the Second Implementation
Period of the Regional Haze Program'' (``2018 Visibility Tracking
Guidance''),\10\ and the June 2020 ``Recommendation for the Use of
Patched and Substituted Data and Clarification of Data Completeness for
Tracking Visibility Progress for the Second Implementation Period of
the Regional Haze Program'' and associated Technical Addendum (``2020
Data Completeness Memo'').\11\
---------------------------------------------------------------------------
\8\ Guidance on Regional Haze State Implementation Plans for the
Second Implementation Period. https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and
Standards, Research Triangle Park (August 20, 2019).
\9\ Clarifications Regarding Regional Haze State Implementation
Plans for the Second Implementation Period. https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf. The EPA Office of Air Quality Planning and Standards,
Research Triangle Park (July 8, 2021).
\10\ Technical Guidance on Tracking Visibility Progress for the
Second Implementation Period of the Regional Haze Program. https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional. The EPA Office of
Air Quality Planning and Standards, Research Triangle Park.
(December 20, 2018).
\11\ Recommendation for the Use of Patched and Substituted Data
and Clarification of Data Completeness for Tracking Visibility
Progress for the Second Implementation Period of the Regional Haze
Program. https://www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program. The EPA
Office of Air Quality Planning and Standards, Research Triangle Park
(June 3, 2020).
---------------------------------------------------------------------------
As previously explained in the 2021 Clarifications Memo, EPA
intends the second implementation period of the regional haze program
to secure meaningful reductions in visibility impairing pollutants that
build on the significant progress states have achieved to date. The
Agency also recognizes that analyses regarding reasonable progress are
state-specific and that, based on states' and sources' individual
circumstances, what constitutes reasonable reductions in visibility
impairing pollutants will vary from state-to-state. While there exist
many opportunities for states to leverage both ongoing and upcoming
emission reductions under other CAA programs, the Agency expects states
to undertake rigorous reasonable progress analyses that identify
further opportunities to advance the national visibility goal
consistent with the statutory and regulatory requirements. See 2021
Clarifications Memo. This is consistent with Congress's determination
that a visibility protection program is needed in addition to the CAA's
National Ambient Air Quality Standards and Prevention of Significant
Deterioration programs, as further emission reductions may be necessary
to adequately protect visibility in Class I areas throughout the
country.\12\
---------------------------------------------------------------------------
\12\ See, e.g., H.R. Rep No. 95-294 at 205 (``In determining how
to best remedy the growing visibility problem in these areas of
great scenic importance, the committee realizes that as a matter of
equity, the national ambient air quality standards cannot be revised
to adequately protect visibility in all areas of the country.''),
(``the mandatory class I increments of [the PSD program] do not
adequately protect visibility in class I areas'').
---------------------------------------------------------------------------
B. Roles of Agencies in Addressing Regional Haze
Because the air pollutants and pollution affecting visibility in
Class I areas can be transported over long distances, successful
implementation of the regional haze program requires long-term,
regional coordination among multiple jurisdictions and agencies that
have responsibility for Class I areas and the emissions that impact
visibility in those areas. In order to address regional haze, states
need to develop strategies in coordination with one another,
considering the effect of emissions from one jurisdiction on the air
quality in another. Five regional planning organizations (RPOs),\13\
which include representation from state and Tribal governments, the
EPA, and FLMs, were developed in the lead-up to the first
implementation period to address regional haze. RPOs evaluate technical
information to better understand how emissions from State and Tribal
land impact Class I areas across the country, pursue the development of
regional strategies to reduce emissions of particulate matter and other
pollutants leading to regional haze, and help states meet the
consultation requirements of the RHR.
---------------------------------------------------------------------------
\13\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this
notice, the terms RPO and MJO are synonymous.
---------------------------------------------------------------------------
The Mid-Atlantic/Northeast Visibility Union (MANE-VU), one of the
five RPOs described above, is a collaborative effort of state
governments, Tribal governments, and various Federal agencies
established to initiate and coordinate activities associated with the
management of regional haze, visibility, and other air quality issues
in the Mid-Atlantic and Northeast corridor of the United States. Member
states and Tribal governments (listed alphabetically) include:
Connecticut, Delaware, the District of Columbia, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania,
Penobscot Indian Nation, Rhode Island, St. Regis Mohawk Tribe, and
Vermont. The Federal partner members of MANE-VU are EPA, U.S. National
Parks Service (NPS), U.S. Fish and Wildlife Service (FWS), and U.S.
Forest Service (USFS).
III. Requirements for Regional Haze Plans for the Second Implementation
Period
Under the CAA and EPA's regulations, all 50 states, the District of
Columbia, and the U.S. Virgin Islands are required to submit regional
haze SIPs satisfying the applicable requirements for the second
implementation period of the regional haze program by July 31, 2021.
Each state's SIP must contain a long-term strategy for making
reasonable progress toward meeting the national goal of remedying any
existing and preventing any future anthropogenic visibility impairment
in Class I areas. CAA 169A(b)(2)(B). To this end, 40 CFR 51.308(f) lays
out the process by which states determine what constitutes their long-
term strategies, with the order of the requirements in 40 CFR
51.308(f)(1) through (f)(3) generally mirroring the order of the steps
in the reasonable progress analysis \14\ and (f)(4) through (6)
containing additional, related requirements. Broadly speaking, a state
first must identify the Class I areas within the state and determine
the Class I areas outside the state in which visibility may be affected
by emissions from the state. These are the Class I areas that must be
addressed in the
[[Page 20388]]
state's long-term strategy. See 40 CFR 51.308(f), (f)(2). For each
Class I area within its borders, a state must then calculate the
baseline, current, and natural visibility conditions for that area, as
well as the visibility improvement made to date and the URP. See 40 CFR
51.308(f)(1). Each state having a Class I area and/or emissions that
may affect visibility in a Class I area must then develop a long-term
strategy that includes the enforceable emission limitations, compliance
schedules, and other measures that are necessary to make reasonable
progress in such areas. Reasonable progress is determined by applying
the four factors in CAA section 169A(g)(1) to sources of visibility-
impairing pollutants that the state has selected to assess for controls
for the second implementation period. See 40 CFR 51.308(f)(2). A state
evaluates potential emission reduction measures for those selected
sources and determines which are necessary to make reasonable progress
using the four statutory factors. Those measures are then incorporated
into the state's long-term strategy. After a state has developed its
long-term strategy, it then establishes RPGs for each Class I area
within its borders by modeling the visibility impacts of all reasonable
progress controls at the end of the second implementation period, i.e.,
in 2028, as well as the impacts of other requirements of the CAA. The
RPGs include reasonable progress controls not only for sources in the
state in which the Class I area is located, but also for sources in
other states that contribute to visibility impairment in that area. The
RPGs are then compared to the baseline visibility conditions and the
URP to ensure that progress is being made towards the statutory goal of
preventing any future and remedying any existing anthropogenic
visibility impairment in Class I areas. 40 CFR 51.308(f)(2) through
(3).
---------------------------------------------------------------------------
\14\ EPA explained in the 2017 RHR Revisions that we were
adopting new regulatory language in 40 CFR 51.308(f) that, unlike
the structure in Sec. 51.308(d), ``tracked the actual planning
sequence.'' (82 FR 3091, January 10, 2017).
---------------------------------------------------------------------------
In addition to satisfying the requirements at 40 CFR 51.308(f)
related to reasonable progress, the SIP submissions due by July 31,
2021, for the second implementation period must address the
requirements in 40 CFR 51.308(g)(1) through (5) pertaining to periodic
reports describing progress towards the RPGs, 40 CFR 51.308(f)(5), as
well as requirements for FLM consultation that apply to all visibility
protection SIPs and SIP revisions. 40 CFR 51.308(i).
A state must submit its regional haze SIP and subsequent SIP
revisions to the EPA according to the requirements applicable to all
SIP revisions under the CAA and EPA's regulations. See CAA 169A(b)(2);
CAA 110(a). Upon EPA approval, a SIP is enforceable by the Agency and
the public under the CAA. If EPA finds that a state fails to make a
required SIP revision, or if the EPA finds that a state's SIP is
incomplete or if the EPA disapproves a state's SIP, the Agency must
promulgate a Federal implementation plan (FIP) that satisfies the
applicable requirements. CAA 110(c)(1).
A. Identification of Class I Areas
The SIP revision submission due by July 31, 2021, ``must address
regional haze in each mandatory Class I Federal area located within the
State and in each mandatory Class I Federal area located outside the
State that may be affected by emissions from within the State.'' 40 CFR
51.308(f); see also 40 CFR 51.308(f)(2).\15\ Thus, the first step in
developing a regional haze SIP is for a state to determine which Class
I areas, in addition to those within its borders, ``may be affected''
by emissions from within the state. In the 1999 RHR, the EPA determined
that all states contribute to visibility impairment in at least one
Class I area, (64 FR 35720-22, July 1, 1999) and explained that the
statute and regulations lay out an ``extremely low triggering
threshold'' for determining ``whether States should be required to
engage in air quality planning and analysis as a prerequisite to
determining the need for control of emissions from sources within their
State.'' Id. at 35721.
---------------------------------------------------------------------------
\15\ The RHR uses the phrase ``that may be affected by emissions
from the State'' to implement CAA 169A(b)(2)'s requirement that a
state ``the emissions from which may reasonably be anticipated to
cause or contribute to any impairment of visibility'' submit a SIP.
---------------------------------------------------------------------------
A state must determine which Class I areas must be addressed by its
SIP by evaluating the total emissions of visibility impairing
pollutants from all sources within the state. While the RHR does not
require this evaluation to be conducted in any particular manner, EPA's
2019 Guidance provides recommendations for how such an assessment might
be accomplished, including by, where appropriate, using the
determinations previously made for the first implementation period.
2019 Guidance at 8-9. In addition, the determination of which Class I
areas may be affected by a state's emissions is subject to the
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical
basis, including modeling, monitoring, cost, engineering, and emissions
information, on which the State is relying to determine the emission
reduction measures that are necessary to make reasonable progress in
each mandatory Class I Federal area it affects.''
B. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
As part of assessing whether a SIP submission for the second
implementation period is providing for reasonable progress towards the
national visibility goal, the RHR contains requirements in 40 CFR
51.308(f)(1) related to tracking visibility improvement over time. The
requirements of this subsection apply only to states having Class I
areas within their borders; the required calculations must be made for
each such Class I area. EPA's 2018 Visibility Tracking Guidance \16\
provides recommendations to assist states in satisfying their
obligations under 40 CFR 51.308(f)(1); specifically, in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP to account for the
impacts of international anthropogenic emissions and prescribed fires.
See 82 FR 3103-0 (Jan. 10, 2017).
---------------------------------------------------------------------------
\16\ The 2018 Visibility Tracking Guidance references and relies
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking
Progress Under the Regional Haze Rule,'' which can be found at
https://www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf.
---------------------------------------------------------------------------
The RHR requires tracking of visibility conditions on two sets of
days: the clearest and the most impaired days. Visibility conditions
for both sets of days are expressed as the average deciview index for
the relevant five-year period (the period representing baseline or
current visibility conditions). The RHR provides that the relevant sets
of days for visibility tracking purposes are the 20% clearest (the 20%
of monitored days in a calendar year with the lowest values of the
deciview index) and 20% most impaired days (the 20% of monitored days
in a calendar year with the highest amounts of anthropogenic visibility
impairment).\17\ 40 CFR 51.301. A state must calculate visibility
conditions for both the 20% clearest and 20% most impaired days for the
baseline period of 2000-2004 and the most recent five-year period for
which visibility monitoring data are available (representing current
visibility conditions). 40 CFR 51.308(f)(1)(i), (iii). States must also
calculate natural visibility conditions for the clearest and most
impaired days,\18\ by estimating the
[[Page 20389]]
conditions that would exist on those two sets of days absent
anthropogenic visibility impairment. 40 CFR 51.308(f)(1)(ii). Using all
these data, states must then calculate, for each Class I area, the
amount of progress made since the baseline period (2000-2004) and how
much improvement is left to achieve in order to reach natural
visibility conditions.
---------------------------------------------------------------------------
\17\ This notice also refers to the 20% clearest and 20% most
anthropogenically impaired days as the ``clearest'' and ``most
impaired'' or ``most anthropogenically impaired'' days,
respectively.
\18\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error
related to the requirement for calculating two sets of natural
conditions values. The rule states ``most impaired days or the
clearest days'' where it should say ``most impaired days and
clearest days.'' This is an error that was intended to be corrected
in the 2017 RHR Revisions but did not get corrected in the final
rule language. This is supported by the preamble text at 82 FR 3098:
``In the final version of 40 CFR 51.308(f)(1)(ii), an occurrence of
``or'' has been corrected to ``and'' to indicate that natural
visibility conditions for both the most impaired days and the
clearest days must be based on available monitoring information.''
---------------------------------------------------------------------------
Using the data for the set of most impaired days only, states must
plot a line between visibility conditions in the baseline period and
natural visibility conditions for each Class I area to determine the
URP--the amount of visibility improvement, measured in deciviews, that
would need to be achieved during each implementation period in order to
achieve natural visibility conditions by the end of 2064. The URP is
used in later steps of the reasonable progress analysis for
informational purposes and to provide a non-enforceable benchmark
against which to assess a Class I area's rate of visibility
improvement.\19\ Additionally, in the 2017 RHR Revisions, the EPA
provided states the option of proposing to adjust the endpoint of the
URP to account for impacts of anthropogenic sources outside the United
States and/or impacts of certain types of wildland prescribed fires.
These adjustments, which must be approved by the EPA, are intended to
avoid any perception that states should compensate for impacts from
international anthropogenic sources and to give states the flexibility
to determine that limiting the use of wildland-prescribed fire is not
necessary for reasonable progress. 82 FR 3107 footnote 116.
---------------------------------------------------------------------------
\19\ Being on or below the URP is not a ``safe harbor''; i.e.,
achieving the URP does not mean that a Class I area is making
``reasonable progress'' and does not relieve a state from using the
four statutory factors to determine what level of control is needed
to achieve such progress. See, e.g., 82 FR 3093 (Jan. 10, 2017).
---------------------------------------------------------------------------
EPA's 2018 Visibility Tracking Guidance can be used to help satisfy
the 40 CFR 51.308(f)(1) requirements, including in developing
information on baseline, current, and natural visibility conditions,
and in making optional adjustments to the URP. In addition, the 2020
Data Completeness Memo provides recommendations on the data
completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides
updated natural conditions estimates for each Class I area.
C. Long-Term Strategy for Regional Haze
The core component of a regional haze SIP submission is a long-term
strategy that addresses regional haze in each Class I area within a
state's borders and each Class I area that may be affected by emissions
from the state. The long-term strategy ``must include the enforceable
emissions limitations, compliance schedules, and other measures that
are necessary to make reasonable progress, as determined pursuant to
(f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). The amount of progress
that is ``reasonable progress'' is determined by applying the four
statutory factors in CAA section 169A(g)(1) in an evaluation of
potential control options for sources of visibility impairing
pollutants, which is referred to as a ``four-factor'' analysis.\20\ The
outcome of that analysis is the emission reduction measures that a
particular source or group of sources needs to implement in order to
make reasonable progress towards the national visibility goal. See 40
CFR 51.308(f)(2)(i). Emission reduction measures that are necessary to
make reasonable progress may be either new, additional control measures
for a source, or they may be the existing emission reduction measures
that a source is already implementing. See 2019 Guidance at 43; 2021
Clarifications Memo at 8-10. Such measures must be represented by
``enforceable emissions limitations, compliance schedules, and other
measures'' (i.e., any additional compliance tools) in a state's long-
term strategy in its SIP. 40 CFR 51.308(f)(2).
---------------------------------------------------------------------------
\20\ Per CAA section 169A(g)(1), in determining reasonable
progress states must take into consideration ``the costs of
compliance, the time necessary for compliance, and the energy and
non-air quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' 42 U.S.C. 7491(g)(1).
---------------------------------------------------------------------------
Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the
sources to be evaluated for emission reduction measures; to this end,
the RHR requires states to consider ``major and minor stationary
sources or groups of sources, mobile sources, and area sources'' of
visibility impairing pollutants for potential four-factor control
analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is
which visibility impairing pollutants will be analyzed. As EPA
previously explained, consistent with the first implementation period,
EPA generally expects that each state will analyze at least
SO2 and NOX in selecting sources and determining
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at
4. A state that chooses not to consider at least these two pollutants
should demonstrate why such consideration would be unreasonable. 2021
Clarifications Memo at 4.
While states have the option to analyze all sources, the 2019
Guidance explains that ``an analysis of control measures is not
required for every source in each implementation period,'' and that
``[s]electing a set of sources for analysis of control measures in each
implementation period is . . . consistent with the Regional Haze Rule,
which sets up an iterative planning process and anticipates that a
state may not need to analyze control measures for all its sources in a
given SIP revision.'' 2019 Guidance at 9. However, given that source
selection is the basis of all subsequent control determinations, a
reasonable source selection process ``should be designed and conducted
to ensure that source selection results in a set of pollutants and
sources the evaluation of which has the potential to meaningfully
reduce their contributions to visibility impairment.'' 2021
Clarifications Memo at 3.
EPA explained in the 2021 Clarifications Memo that each state has
an obligation to submit a long-term strategy that addresses the
regional haze visibility impairment that results from emissions from
within that state. Thus, source selection should focus on the in-state
contribution to visibility impairment and be designed to capture a
meaningful portion of the state's total contribution to visibility
impairment in Class I areas. A state should not decline to select its
largest in-state sources on the basis that there are even larger out-
of-state contributors. 2021 Clarifications Memo at 4.\21\
---------------------------------------------------------------------------
\21\ Similarly, in responding to comments on the 2017 RHR
Revisions EPA explained that ``[a] state should not fail to address
its many relatively low-impact sources merely because it only has
such sources, and another state has even more low-impact sources
and/or some high impact sources.'' Responses to Comments on
Protection of Visibility: Amendments to Requirements for State
Plans; Proposed Rule (81 FR 26942, May 4, 2016) at 87-88.
---------------------------------------------------------------------------
Thus, while states have discretion to choose any source selection
methodology that is reasonable, whatever choices they make should be
reasonably explained and result in a set of sources which capture a
meaningful portion of the state's total contribution to visibility
impairment. To this end, 40 CFR 51.308(f)(2)(i) requires that a state's
[[Page 20390]]
SIP submission include ``a description of the criteria it used to
determine which sources or groups of sources it evaluated.'' The
technical basis for source selection, which may include methods for
quantifying potential visibility impacts such as emissions divided by
distance metrics, trajectory analyses, residence time analyses, and/or
photochemical modeling, must also be appropriately documented, as
required by 40 CFR 51.308(f)(2)(iii).
Once a state has selected the set of sources, the next step is to
determine the emissions reduction measures for those sources that are
necessary to make reasonable progress for the second implementation
period.\22\ This is accomplished by considering the four factors--``the
costs of compliance, the time necessary for compliance, and the energy
and non-air quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' CAA 169A(g)(1). The EPA has explained that the four-
factor analysis is an assessment of potential emission reduction
measures (i.e., control options) for sources; ``use of the terms
`compliance' and `subject to such requirements' in section 169A(g)(1)
strongly indicates that Congress intended the relevant determination to
be the requirements with which sources would have to comply in order to
satisfy the CAA's reasonable progress mandate.'' (82 FR 3091, Jan. 10,
2017). Thus, for each source it has selected for four-factor
analysis,\23\ a state must consider a ``meaningful set'' of technically
feasible control options for reducing emissions of visibility impairing
pollutants. Id. at 3088. The 2019 Guidance provides that ``[a] state
must reasonably pick and justify the measures that it will consider,
recognizing that there is no statutory or regulatory requirement to
consider all technically feasible measures or any particular measures.
A range of technically feasible measures available to reduce emissions
would be one way to justify a reasonable set.'' 2019 Guidance at 29.
---------------------------------------------------------------------------
\22\ The CAA provides that, ``[i]n determining reasonable
progress there shall be taken into consideration'' the four
statutory factors. CAA 169A(g)(1). However, in addition to four-
factor analyses for selected sources, groups of sources, or source
categories, a state may also consider additional emission reduction
measures for inclusion in its long-term strategy, e.g., from other
newly adopted, on-the-books, or on-the-way rules and measures for
sources not selected for four-factor analysis for the second
planning period.
\23\ ``Each source'' or ``particular source'' is used here as
shorthand. While a source-specific analysis is one way of applying
the four factors, neither the statute nor the RHR requires states to
evaluate individual sources. Rather, states have ``the flexibility
to conduct four-factor analyses for specific sources, groups of
sources or even entire source categories, depending on state policy
preferences and the specific circumstances of each state.'' (82 FR
3088, Jan. 10, 2017). However, not all approaches to grouping
sources for four-factor analysis are necessarily reasonable; the
reasonableness of grouping sources in any particular instance will
depend on the circumstances and the manner in which grouping is
conducted. If it is feasible to establish and enforce different
requirements for sources or subgroups of sources, and if relevant
factors can be quantified for those sources or subgroups, then
states should make a separate reasonable progress determination for
each source or subgroup. 2021 Clarifications Memo at 7-8.
---------------------------------------------------------------------------
EPA's 2021 Clarifications Memo provides further guidance on what
constitutes a reasonable set of control options for consideration: ``A
reasonable four-factor analysis will consider the full range of
potentially reasonable options for reducing emissions.'' 2021
Clarifications Memo at 7. In addition to add-on controls and other
retrofits (i.e., new emission reduction measures for sources), EPA
explained that states should generally analyze efficiency improvements
for sources' existing measures as control options in their four-factor
analyses, as in many cases such improvements are reasonable given that
they typically involve only additional operation and maintenance costs.
Additionally, the 2021 Clarifications Memo provides that states that
have assumed a higher emission rate than a source has achieved or could
potentially achieve using its existing measures should also consider
lower emission rates as potential control options. That is, a state
should consider a source's recent actual and projected emission rates
to determine if it could reasonably attain lower emission rates with
its existing measures. If so, the state should analyze the lower
emission rate as a control option for reducing emissions. 2021
Clarifications Memo at 7. The EPA's recommendations to analyze
potential efficiency improvements and achievable lower emission rates
apply to both sources that have been selected for four-factor analysis
and those that have forgone a four-factor analysis on the basis of
existing ``effective controls.'' See 2021 Clarifications Memo at 5, 10.
After identifying a reasonable set of potential control options for
the sources it has selected, a state then collects information on the
four factors with regard to each option identified. The EPA has also
explained that, in addition to the four statutory factors, states have
flexibility under the CAA and RHR to reasonably consider visibility
benefits as an optional fifth factor alongside the four statutory
factors.\24\ The 2019 Guidance provides recommendations for the types
of information that can be used to characterize the four factors (with
or without visibility), as well as ways in which states might
reasonably consider and balance that information to determine which of
the potential control options is necessary to make reasonable progress.
See 2019 Guidance at 30-36. The 2021 Clarifications Memo contains
further guidance on how states can reasonably consider modeled
visibility impacts or benefits in the context of a four-factor
analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, EPA
explained that while visibility impacts can reasonably be considered
when comparing and choosing between multiple reasonable control
options, visibility should not be used to reject controls that are
reasonable given the four statutory factors. 2021 Clarifications Memo
at 13. Ultimately, while states have discretion to reasonably weigh the
factors and to determine what level of control is needed, 40 CFR
51.308(f)(2)(i) provides that a state ``must include in its
implementation plan a description of . . . how the four factors were
taken into consideration in selecting the measure for inclusion in its
long-term strategy.''
---------------------------------------------------------------------------
\24\ See, e.g., Responses to Comments on Protection of
Visibility: Amendments to Requirements for State Plans; Proposed
Rule (81 FR 26942, May 4, 2016), Docket Number EPA-HQ-OAR-2015-0531,
U.S. Environmental Protection Agency at 186; 2019 Guidance at 36-37.
---------------------------------------------------------------------------
As explained above, 40 CFR 51.308(f)(2)(i) requires states to
determine the emission reduction measures for sources that are
necessary to make reasonable progress by considering the four factors.
Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make
reasonable progress towards the national visibility goal must be
included in a state's long-term strategy and in its SIP.\25\ If the
outcome of a four-factor analysis is a new, additional emission
reduction measure for a source, that new measure is necessary to make
reasonable progress towards remedying existing anthropogenic visibility
impairment and
[[Page 20391]]
must be included in the SIP. If the outcome of a four-factor analysis
is that no new measures are reasonable for a source, continued
implementation of the source's existing measures is generally necessary
to prevent future emission increases and thus to make reasonable
progress towards the second part of the national visibility goal:
preventing future anthropogenic visibility impairment. See CAA
169A(a)(1). That is, when the result of a four-factor analysis is that
no new measures are necessary to make reasonable progress, the source's
existing measures are generally necessary to make reasonable progress
and must be included in the SIP. However, there may be circumstances in
which a state can demonstrate that a source's existing measures are not
necessary to make reasonable progress. Specifically, if a state can
demonstrate that a source will continue to implement its existing
measures and will not increase its emission rate, it may not be
necessary to have those measures in the long-term strategy in order to
prevent future emission increases and future visibility impairment.
EPA's 2021 Clarifications Memo provides further explanation and
guidance on how states may demonstrate that a source's existing
measures are not necessary to make reasonable progress. See 2021
Clarifications Memo at 8-10. If the state can make such a
demonstration, it need not include a source's existing measures in the
long-term strategy or its SIP.
---------------------------------------------------------------------------
\25\ States may choose to, but are not required to, include
measures in their long-term strategies beyond just the emission
reduction measures that are necessary for reasonable progress. See
2021 Clarifications Memo at 16. For example, states with smoke
management programs may choose to submit their smoke management
plans to EPA for inclusion in their SIPs but are not required to do
so. See, e.g., 82 FR 3108-09, Jan. 10, 2017 (requirement to consider
smoke management practices and smoke management programs under 40
CFR 51.308(f)(2)(iv) does not require states to adopt such practices
or programs into their SIPs, although they may elect to do so).
---------------------------------------------------------------------------
As with source selection, the characterization of information on
each of the factors is also subject to the documentation requirement in
40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including
source selection, information gathering, characterization of the four
statutory factors (and potentially visibility), balancing of the four
factors, and selection of the emission reduction measures that
represent reasonable progress, is a technically complex exercise, but
also a flexible one that provides states with bounded discretion to
design and implement approaches appropriate to their circumstances.
Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important
function in requiring a state to document the technical basis for its
decision making so that the public and the EPA can comprehend and
evaluate the information and analysis the state relied upon to
determine what emission reduction measures must be in place to make
reasonable progress. The technical documentation must include the
modeling, monitoring, cost, engineering, and emissions information on
which the state relied to determine the measures necessary to make
reasonable progress. This documentation requirement can be met through
the provision of and reliance on technical analyses developed through a
regional planning process, so long as that process and its output has
been approved by all state participants. In addition to the explicit
regulatory requirement to document the technical basis of their
reasonable progress determinations, states are also subject to the
general principle that those determinations must be reasonably moored
to the statute.\26\ That is, a state's decisions about the emission
reduction measures that are necessary to make reasonable progress must
be consistent with the statutory goal of remedying existing and
preventing future visibility impairment.
---------------------------------------------------------------------------
\26\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531
(9th Cir. 2016); Nebraska v. U.S. EPA, 812 F.3d 662, 668 (8th Cir.
2016); North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013);
Oklahoma v. EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf.
also Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d
Cir. 2015); Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S.
461, 485, 490 (2004).
---------------------------------------------------------------------------
The four statutory factors (and potentially visibility) are used to
determine what emission reduction measures for selected sources must be
included in a state's long-term strategy for making reasonable
progress. Additionally, the RHR at 40 CFR 51.3108(f)(2)(iv) separately
provides five ``additional factors'' \27\ that states must consider in
developing their long-term strategies: (1) Emission reductions due to
ongoing air pollution control programs, including measures to address
reasonably attributable visibility impairment; (2) measures to reduce
the impacts of construction activities; (3) source retirement and
replacement schedules; (4) basic smoke management practices for
prescribed fire used for agricultural and wildland vegetation
management purposes and smoke management programs; and (5) the
anticipated net effect on visibility due to projected changes in point,
area, and mobile source emissions over the period addressed by the
long-term strategy. The 2019 Guidance provides that a state may satisfy
this requirement by considering these additional factors in the process
of selecting sources for four-factor analysis, when performing that
analysis, or both, and that not every one of the additional factors
needs to be considered at the same stage of the process. See 2019
Guidance at 21. EPA provided further guidance on the five additional
factors in the 2021 Clarifications Memo, explaining that a state should
generally not reject cost-effective and otherwise reasonable controls
merely because there have been emission reductions since the first
planning period owing to other ongoing air pollution control programs
or merely because visibility is otherwise projected to improve at Class
I areas. Additionally, states should not rely on these additional
factors to summarily assert that the state has already made sufficient
progress and, therefore, no sources need to be selected or no new
controls are needed regardless of the outcome of four-factor analyses.
States can, however, consider these factors in a more tailored manner,
e.g., in choosing between multiple control options when all are
reasonable based on the four statutory factors.\28\ 2021 Clarifications
Memo at 13.
---------------------------------------------------------------------------
\27\ The five ``additional factors'' for consideration in Sec.
51.308(f)(2)(iv) are distinct from the four factors listed in CAA
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must
consider and apply to sources in determining reasonable progress.
\28\ In particular, EPA explained in the 2021 Clarifications
Memo that states should not rely on the considerations in 40 CFR
51.308(f)(2)(iv)(A) and (E) to summarily assert that the state has
already made sufficient progress and therefore does not need to
achieve any additional emission reductions. 2021 Clarifications Memo
at 13.
---------------------------------------------------------------------------
Because the air pollution that causes regional haze crosses state
boundaries, 40 CFR 51.308(f)(2)(ii) requires a state to consult with
other states that also have emissions that are reasonably anticipated
to contribute to visibility impairment in a given Class I area.
Consultation allows for each state that impacts visibility in an area
to share whatever technical information, analyses, and control
determinations may be necessary to develop coordinated emission
management strategies. This coordination may be managed through inter-
and intra-RPO consultation and the development of regional emissions
strategies; additional consultations between states outside of RPO
processes may also occur. If a state, pursuant to consultation, agrees
that certain measures (e.g., a certain emission limitation) are
necessary to make reasonable progress at a Class I area, it must
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A).
Additionally, the RHR requires that states that contribute to
visibility impairment at the same Class I area consider the emission
reduction measures the other contributing states have identified as
being necessary to make reasonable progress for their own sources. 40
CFR 51.308(f)(2)(ii)(B). If a state has been asked to consider or adopt
certain emission reduction measures, but ultimately determines
[[Page 20392]]
those measures are not necessary to make reasonable progress, that
state must document in its SIP the actions taken to resolve the
disagreement. 40 CFR 51.308(f)(2)(ii)(C). The EPA will consider the
technical information and explanations presented by the submitting
state and the state with which it disagrees when considering whether to
approve the state's SIP. See id.; 2019 Guidance at 53. Under all
circumstances, a state must document in its SIP submission all
substantive consultations with other contributing states. 40 CFR
51.308(f)(2)(ii)(C).
D. Reasonable Progress Goals
Reasonable progress goals ``measure the progress that is projected
to be achieved by the control measures states have determined are
necessary to make reasonable progress based on a four-factor
analysis.'' (82 FR 3091, Jan. 10, 2017). Their primary purpose is to
assist the public and the EPA in assessing the reasonableness of
states' long-term strategies for making reasonable progress towards the
national visibility goal. See 40 CFR 51.308(f)(3)(iii) through (iv).
States in which Class I areas are located must establish two RPGs, both
in deciviews--one representing visibility conditions on the clearest
days and one representing visibility on the most anthropogenically
impaired days--for each area within their borders. 40 CFR
51.308(f)(3)(i). The two RPGs are intended to reflect the projected
impacts, on the two sets of days, of the emission reduction measures
the state with the Class I area, as well as all other contributing
states, have included in their long-term strategies for the second
implementation period.\29\ The RPGs also account for the projected
impacts of implementing other CAA requirements, including non-SIP based
requirements. Because RPGs are the modeled result of the measures in
states' long-term strategies (as well as other measures required under
the CAA), they cannot be determined before states have conducted their
four-factor analyses and determined the control measures that are
necessary to make reasonable progress. See 2021 Clarifications Memo at
6.
---------------------------------------------------------------------------
\29\ RPGs are intended to reflect the projected impacts of the
measures all contributing states include in their long-term
strategies. However, due to the timing of analyses and of control
determinations by other states, other on-going emissions changes, a
particular state's RPGs may not reflect all control measures and
emissions reductions that are expected to occur by the end of the
implementation period. The 2019 Guidance provides recommendations
for addressing the timing of RPG calculations when states are
developing their long-term strategies on disparate schedules, as
well as for adjusting RPGs using a post-modeling approach. 2019
Guidance at 47-48.
---------------------------------------------------------------------------
For the second implementation period, the RPGs are set for 2028.
Reasonable progress goals are not enforceable targets, 40 CFR
51.308(f)(3)(iii); rather, they ``provide a way for the states to check
the projected outcome of the [long-term strategy] against the goals for
visibility improvement.'' 2019 Guidance at 46. While states are not
legally obligated to achieve the visibility conditions described in
their RPGs, 40 CFR 51.308(f)(3)(i) requires that ``[t]he long-term
strategy and the reasonable progress goals must provide for an
improvement in visibility for the most impaired days since the baseline
period and ensure no degradation in visibility for the clearest days
since the baseline period.'' Thus, states are required to have emission
reduction measures in their long-term strategies that are projected to
achieve visibility conditions on the most impaired days that are better
than the baseline period and shows no degradation on the clearest days
compared to the clearest days from the baseline period. The baseline
period for the purpose of this comparison is the baseline visibility
condition--the annual average visibility condition for the period 2000-
2004. See 40 CFR 51.308(f)(1)(i), (82 FR 3097-98, Jan. 10, 2017).
So that RPGs may also serve as a metric for assessing the amount of
progress a state is making towards the national visibility goal, the
RHR requires states with Class I areas to compare the 2028 RPG for the
most impaired days to the corresponding point on the URP line
(representing visibility conditions in 2028 if visibility were to
improve at a linear rate from conditions in the baseline period of
2000-2004 to natural visibility conditions in 2064). If the most
impaired days RPG in 2028 is above the URP (i.e., if visibility
conditions are improving more slowly than the rate described by the
URP), each state that contributes to visibility impairment in the Class
I area must demonstrate, based on the four-factor analysis required
under 40 CFR 51.308(f)(2)(i), that no additional emission reduction
measures would be reasonable to include in its long-term strategy. 40
CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires
that each state contributing to visibility impairment in a Class I area
that is projected to improve more slowly than the URP provide, ``a
robust demonstration, including documenting the criteria used to
determine which sources or groups [of] sources were evaluated and how
the four factors required by paragraph (f)(2)(i) were taken into
consideration in selecting the measures for inclusion in its long-term
strategy.'' The 2019 Guidance provides suggestions about how such a
``robust demonstration'' might be conducted. See 2019 Guidance at 50-
51.
The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also
explain that projecting an RPG that is on or below the URP based on
only on-the-books and/or on-the-way control measures (i.e., control
measures already required or anticipated before the four-factor
analysis is conducted) is not a ``safe harbor'' from the CAA's and
RHR's requirement that all states must conduct a four-factor analysis
to determine what emission reduction measures constitute reasonable
progress. The URP is a planning metric used to gauge the amount of
progress made thus far and the amount left before reaching natural
visibility conditions. However, the URP is not based on consideration
of the four statutory factors and therefore cannot answer the question
of whether the amount of progress being made in any particular
implementation period is ``reasonable progress.'' See 82 FR 3093, 3099-
3100 (Jan. 10, 2017); 2019 Guidance at 22; 2021 Clarifications Memo at
15-16.
E. Monitoring Strategy and Other State Implementation Plan Requirements
Section 51.308(f)(6) requires states to have certain strategies and
elements in place for assessing and reporting on visibility. Individual
requirements under this subsection apply either to states with Class I
areas within their borders, states with no Class I areas but that are
reasonably anticipated to cause or contribute to visibility impairment
in any Class I area, or both. A state with Class I areas within its
borders must submit with its SIP revision a monitoring strategy for
measuring, characterizing, and reporting regional haze visibility
impairment that is representative of all Class I areas within the
state. SIP revisions for such states must also provide for the
establishment of any additional monitoring sites or equipment needed to
assess visibility conditions in Class I areas, as well as reporting of
all visibility monitoring data to the EPA at least annually. Compliance
with the monitoring strategy requirement may be met through a state's
participation in the Interagency Monitoring of Protected Visual
Environments (IMPROVE) monitoring network, which is used to measure
visibility impairment caused by air pollution at the 156 Class I areas
covered by the visibility program. 40
[[Page 20393]]
CFR 51.308(f)(6), (f)(6)(i), (f)(6)(iv). The IMPROVE monitoring data is
used to determine the 20% most anthropogenically impaired and 20%
clearest sets of days every year at each Class I area and tracks
visibility impairment over time.
All states' SIPs must provide for procedures by which monitoring
data and other information are used to determine the contribution of
emissions from within the state to regional haze visibility impairment
in affected Class I areas. 40 CFR 51.308(f)(6)(ii), (iii). Section
51.308(f)(6)(v) further requires that all states' SIPs provide for a
statewide inventory of emissions of pollutants that are reasonably
anticipated to cause or contribute to visibility impairment in any
Class I area; the inventory must include emissions for the most recent
year for which data are available and estimates of future projected
emissions. States must also include commitments to update their
inventories periodically. The inventories themselves do not need to be
included as elements in the SIP and are not subject to EPA review as
part of the Agency's evaluation of a SIP revision.\30\ All states' SIPs
must also provide for any other elements, including reporting,
recordkeeping, and other measures, that are necessary for states to
assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019
Guidance, a state may note in its regional haze SIP that its compliance
with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51 subpart
A satisfies the requirement to provide for an emissions inventory for
the most recent year for which data are available. To satisfy the
requirement to provide estimates of future projected emissions, a state
may explain in its SIP how projected emissions were developed for use
in establishing RPGs for its own and nearby Class I areas.\31\
---------------------------------------------------------------------------
\30\ See ``Step 8: Additional requirements for regional haze
SIPs'' in 2019 Regional Haze Guidance at 55.
\31\ Id.
---------------------------------------------------------------------------
Separate from the requirements related to monitoring for regional
haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a
requirement at 40 CFR 51.308(f)(4) related to any additional monitoring
that may be needed to address visibility impairment in Class I areas
from a single source or a small group of sources. This is called
``reasonably attributable visibility impairment.'' \32\ Under this
provision, if the EPA or the FLM of an affected Class I area has
advised a state that additional monitoring is needed to assess
reasonably attributable visibility impairment, the state must include
in its SIP revision for the second implementation period an appropriate
strategy for evaluating such impairment.
---------------------------------------------------------------------------
\32\ EPA's visibility protection regulations define ``reasonably
attributable visibility impairment'' as ``visibility impairment that
is caused by the emission of air pollutants from one, or a small
number of sources.'' 40 CFR 51.301.
---------------------------------------------------------------------------
F. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires a state's regional haze SIP revision
to address the requirements of paragraphs 40 CFR 51.308(g)(1) through
(5) so that the plan revision due in 2021 will serve also as a progress
report addressing the period since submission of the progress report
for the first implementation period. The regional haze progress report
requirement is designed to inform the public and the EPA about a
state's implementation of its existing long-term strategy and whether
such implementation is in fact resulting in the expected visibility
improvement. See 81 FR 26942, 26950 (May 4, 2016); 82 FR 3119 (January
10, 2017). To this end, every state's SIP revision for the second
implementation period is required to describe the status of
implementation of all measures included in the state's long-term
strategy, including BART and reasonable progress emission reduction
measures from the first implementation period, and the resulting
emissions reductions. 40 CFR 51.308(g)(1) and (2).
A core component of the progress report requirements is an
assessment of changes in visibility conditions on the clearest and most
impaired days. For second implementation period progress reports, 40
CFR 51.308(g)(3) requires states with Class I areas within their
borders to first determine current visibility conditions for each area
on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i), and
then to calculate the difference between those current conditions and
baseline (2000-2004) visibility conditions in order to assess progress
made to date. See 40 CFR 51.308(g)(3)(ii). States must also assess the
changes in visibility impairment for the most impaired and clearest
days since they submitted their first implementation period progress
reports. See 40 CFR 51.308(g)(3)(iii), (f)(5). Since different states
submitted their first implementation period progress reports at
different times, the starting point for this assessment will vary state
by state.
Similarly, states must provide analyses tracking the change in
emissions of pollutants contributing to visibility impairment from all
sources and activities within the state over the period since they
submitted their first implementation period progress reports. See 40
CFR 51.308(g)(4), (f)(5). Changes in emissions should be identified by
the type of source or activity. Section 51.308(g)(5) also addresses
changes in emissions since the period addressed by the previous
progress report and requires states' SIP revisions to include an
assessment of any significant changes in anthropogenic emissions within
or outside the state. This assessment must include an explanation of
whether these changes in emissions were anticipated and whether they
have limited or impeded progress in reducing emissions and improving
visibility relative to what the state projected based on its long-term
strategy for the first implementation period.
G. Requirements for State and Federal Land Manager Coordination
Clean Air Act section 169A(d) requires that before a state holds a
public hearing on a proposed regional haze SIP revision, it must
consult with the appropriate FLM or FLMs; pursuant to that
consultation, the state must include a summary of the FLMs' conclusions
and recommendations in the notice to the public. Consistent with this
statutory requirement, the RHR also requires that states ``provide the
[FLM] with an opportunity for consultation, in person and at a point
early enough in the State's policy analyses of its long-term strategy
emission reduction obligation so that information and recommendations
provided by the [FLM] can meaningfully inform the State's decisions on
the long-term strategy.'' 40 CFR 51.308(i)(2). Consultation that occurs
120 days prior to any public hearing or public comment opportunity will
be deemed ``early enough,'' but the RHR provides that in any event the
opportunity for consultation must be provided at least 60 days before a
public hearing or comment opportunity. This consultation must include
the opportunity for the FLMs to discuss their assessment of visibility
impairment in any Class I area and their recommendations on the
development and implementation of strategies to address such
impairment. 40 CFR 51.308(i)(2). In order for the EPA to evaluate
whether FLM consultation meeting the requirements of the RHR has
occurred, the SIP submission should include documentation of the timing
and content of such consultation. The SIP revision submitted to the EPA
must also describe how the state addressed any comments provided by the
FLMs. 40 CFR 51.308(i)(3). Finally, a SIP revision must provide
procedures for
[[Page 20394]]
continuing consultation between the state and FLMs regarding the
state's visibility protection program, including development and review
of SIP revisions, five-year progress reports, and the implementation of
other programs having the potential to contribute to impairment of
visibility in Class I areas. 40 CFR 51.308(i)(4).
IV. The EPA's Evaluation of New York's Regional Haze Submission for the
Second Implementation Period
A. Background on New York's First Implementation Period SIP Submission
NYSDEC submitted its regional haze SIP for the first implementation
period to the EPA on March 15, 2010, and supplemented it on August 2,
2010, April 16, 2012, and July 2, 2012. The EPA approved New York's
first implementation period regional haze SIP submission on August 28,
2012 (77 FR 51915). EPA's approval included, but was not limited to,
seventeen source-specific SIP revisions containing permits for Best
Available Retrofit Technology, revisions to Title 6 of the New York
Codes, Rules and Regulations (NYCRR), Part 249, ``Best Available
Retrofit Technology (BART),'' and revisions to section 19-0325 of the
New York Environmental Conservation Law which regulates the sulfur
content of fuel oil. Although New York State addressed most of the
issues identified in EPA's proposal, EPA promulgated a Federal
Implementation Plan to address two sources for which EPA disapproved
New York's BART determinations. The requirements for regional haze SIPs
for the first implementation period are contained in 40 CFR 51.308(d)
and (e) and 40 CFR 51.308(b). Pursuant to 40 CFR 51.308(g), New York
was also responsible for submitting a five-year progress report as a
SIP revision for the first implementation period, which NYSDEC did on
June 16, 2015. The EPA approved the progress report into the New York
SIP on September 29, 2017 (82 FR 45499, September 29, 2017).
B. New York's Second Implementation Period SIP Submission and the EPA's
Evaluation
In accordance with CAA sections 169A and the RHR at 40 CFR
51.308(f), on May 12, 2020,\33\ NYSDEC submitted a revision to the New
York SIP to address the jurisdiction's regional haze obligations for
the second implementation period, which runs through 2028. New York
made its 2020 Regional Haze SIP submission available for public comment
on August 7, 2019. NYSDEC received and responded to public comments and
included the comments and responses to those comments in their
submission to the EPA.
---------------------------------------------------------------------------
\33\ NYSDEC supplemented its SIP submission on February 16,
2022.
---------------------------------------------------------------------------
The following sections describe New York's SIP submission,
including analyses conducted by MANE-VU and New York's determinations
based on those analyses, New York's assessment of progress made since
the first implementation period in reducing emissions of visibility
impairing pollutants, and the visibility improvement progress at nearby
Class I areas. This notice also contains EPA's evaluation of New York's
submission against the requirements of the CAA and RHR for the second
implementation period of the regional haze program.
C. Identification of Class I Areas
Section 169A(b)(2) of the CAA requires each state in which any
Class I area is located, or ``the emissions from which may reasonably
be anticipated to cause or contribute to any impairment of visibility''
in a Class I area, to have a plan for making reasonable progress toward
the national visibility goal. The RHR incorporates this statutory
requirement at 40 CFR 51.308(f), which provides that each state's plan
``must address regional haze in each mandatory Class I Federal area
located within the State and in each mandatory Class I Federal area
located outside the State that may be affected by emissions from within
the State,'' and (f)(2), which requires each state's plan to include a
long-term strategy that addresses regional haze in such Class I areas.
The EPA explained in the 1999 RHR preamble that the CAA section
169A(b)(2) requirement that states submit SIPs to address visibility
impairment establishes ``an `extremely low triggering threshold' in
determining which States should submit SIPs for regional haze.'' (64 FR
35721, July 1, 1999). In concluding that each of the contiguous 48
states and the District of Columbia meet this threshold,\34\ the EPA
relied on ``a large body of evidence demonstrating that long-range
transport of fine PM contributes to regional haze,'' id., including
modeling studies that ``preliminarily demonstrated that each State not
having a Class I area had emissions contributing to impairment in at
least one downwind Class I area.'' Id. at 35722. In addition to the
technical evidence supporting a conclusion that each state contributes
to existing visibility impairment, the EPA also explained that the
second half of the national visibility goal--preventing future
visibility impairment--requires having a framework in place to address
future growth in visibility-impairing emissions and makes it
inappropriate to ``establish criteria for excluding States or
geographic areas from consideration as potential contributors to
regional haze visibility impairment.'' Id. at 35721. Thus, the EPA
concluded that the agency's ``statutory authority and the scientific
evidence are sufficient to require all States to develop regional haze
SIPs to ensure the prevention of any future impairment of visibility,
and to conduct further analyses to determine whether additional control
measures are needed to ensure reasonable progress in remedying existing
impairment in downwind Class I areas.'' Id. at 35722. EPA's 2017
revisions to the RHR did not disturb this conclusion. See 82 FR 3094
(July 10, 2017).
---------------------------------------------------------------------------
\34\ EPA determined that ``there is more than sufficient
evidence to support our conclusion that emissions from each of the
48 contiguous states and the District of Columbia may reasonably be
anticipated to cause or contribute to visibility impairment in a
Class I area.'' (64 FR 35721, July 1, 1999). Hawaii, Alaska, and the
U.S. Virgin Islands must also submit regional haze SIPs because they
contain Class I areas.
---------------------------------------------------------------------------
New York has no Class I areas within its borders. For the second
implementation period, MANE-VU performed technical analyses \35\ to
help inform source and state-level contributions to visibility
impairment and the need for interstate consultation. MANE-VU used the
results of these analyses to determine which states' emissions ``have a
high likelihood of affecting visibility in MANE-VU's Class I areas.''
\36\ Similar to metrics used in the first implementation period,\37\
MANE-VU used a greater than 2 percent of sulfate plus nitrate emissions
contribution criteria to determine whether emissions from individual
jurisdictions within the region affected visibility in any Class I
areas. The MANE-VU analyses for the second implementation period used a
combination of data analysis techniques, including emissions data
dispersion modeling. Although many of the analyses focused only on
SO2 emissions and resultant particulate sulfate
contributions to visibility impairment, some also incorporated
NOX emissions to estimate particulate nitrate contributions.
---------------------------------------------------------------------------
\35\ The contribution assessment methodologies for MANE-VU Class
I areas are summarized in appendix C of the NY RH 2nd Implementation
Period SIP submission, ``Selection of States for MANE-VU Regional
Haze Consultation (2018).''
\36\ Id.
\37\ See docket EPA-R02-OAR-2012-0296 for MANE-VU supporting
materials.
---------------------------------------------------------------------------
One MANE-VU analysis used for contribution assessment was CALPUFF
[[Page 20395]]
air dispersion modeling.\38\ The CALPUFF model was used to estimate
sulfate and nitrate formation and transport in MANE-VU and nearby
regions from large electric generating unit (EGU) point sources and
other large industrial and institutional sources in the eastern and
central United States. Information from the initial round of CALPUFF
modeling was collected on the 444 electric generating units (EGUs) that
were determined to warrant further scrutiny based on their emissions of
SO2 and NOX. The list of EGUs was based on
enhanced ``Q/d'' analysis \39\ that considered recent SO2
emissions in the eastern United States and an analysis that adjusted
previous 2002 MANE-VU CALPUFF modeling by applying a ratio of the 2011
to 2002 SO2 emissions. This list of sources was then
enhanced by including the top five SO2 and NOX
emission sources for 2011 for each state included in the modeling
domain. A total of 311 EGU stacks (as opposed to individual units) were
included in the CALPUFF modeling analysis. Initial information was also
collected on the 50 industrial and institutional sources that,
according to the 2011 Q/d analysis, contributed the most to visibility
impacts in each Class I area. The ultimate CALPUFF modeling run
included a total of 311 EGU stacks and 82 industrial facilities. The
summary report for the CALPUFF modeling included the top 10 most
impacting EGUs and the top five most impacting industrial/institutional
sources for each Class I area and compiled those results into a ranked
list of the most impacting EGUs and industrial sources at MANE-VU Class
I areas.\40\
---------------------------------------------------------------------------
\38\ See page 6 of Appendix K of the NY RH 2nd Implementation
Period SIP submission.
\39\ ``Q/d'' is emissions (Q) in tons per year, typically of one
or a combination of visibility-impairing pollutants, divided by
distance to a class I area (d) in kilometers. The resulting ratio is
commonly used as a metric to assess a source's potential visibility
impacts on a particular class I area.
\40\ See Tables 34 and 35 of appendix K of the NY RH 2nd
Implementation Period SIP submission.
---------------------------------------------------------------------------
New York had three EGUs and four industrial sources that were
included in the MANE-VU CALPUFF modeling.\41\ Somerset Operating
Company, Oswego Harbor Power, and Cayuga Operating Company are the
three EGU facilities identified by the modeling. Lafarge Building
Materials Inc., Finch Paper LLC, International Paper Ticonderoga Mill,
and Kodak Park Division are the four industrial/institutional (ICI)
facilities identified by the modeling.
---------------------------------------------------------------------------
\41\ See appendix K, ``MANE-VU Source Contribution Modeling
Report--CALPUFF Modeling of Large Electrical Generating Units and
Industrial Sources (MANE-VU, April 2017)'' of the NY RH 2nd
Implementation Period SIP submission.
---------------------------------------------------------------------------
In its submittal, New York states that it has adopted revisions to
6 NYCRR Part 251, Carbon Dioxide Performance Standards for Major
Electric Generating Facilities ``to require all power plants in New
York to meet new emissions limits for carbon dioxide
(CO2).'' As a result of these revisions, New York's
submittal indicates that Somerset Operating Company ceased operations
after submitting their deactivation plan to New York Independent System
Operator (NYISO). In its February 16, 2022, supplement to its
submittal, New York stated that Somerset Operating Company retired its
primary units on March 31, 2020 and that it was being demolished.\42\
New York's submittal addresses Oswego Harbor Power as follows. Oswego
Harbor Power Emission Unit U00006 consists of one steam generator, Unit
6, that provides steam to a turbine capable of producing 850 MW net of
electricity. This unit can produce up to 245 MW by firing natural gas.
Natural gas or distillate oil may be used to ignite the boiler during
startup. The oil must have a sulfur content no greater than 0.5% by
weight to be used in this unit. Unit 6 is subject to 40 CFR part 60,
subpart D. Particulate emissions are controlled by an electrostatic
precipitator (S006C). NOX emissions are controlled by over-
fire air and flue gas recirculation. SO2 emissions in 2017
were 100.9 tons, compared to 373.4 tons in 2011. NOX
emissions from Oswego Harbor Power were 59.7 tons, a decrease from
101.6 tons in 2011. New York's submittal indicates that Cayuga
Generating Station is no longer operating, but still retains its State
Administrative Procedure Act (SAPA) \43\ extended permit.
---------------------------------------------------------------------------
\42\ See docket document ``FLM List Facility Controls''
\43\ N.Y. Comp. Codes R. & Regs. tit. 82.
---------------------------------------------------------------------------
International Paper Ticonderoga Mill submitted an updated RACT
analysis in September 2016 which set an emission limit of 0.23 lb
NOX/MMBtu on the power boiler that burns natural gas. RED-
Rochester is located in the old Kodak Park and has converted coal-fired
boiler #44 to natural gas with #2 fuel oil backup. Boiler #44 is rated
at 694 MMBtu/hr on natural gas and 670 MMBtu/hr on No. 2 oil. The final
conversion scenario decommissioned three boilers: \44\ the previously
shut down 640 MBTU/hr coal fired Boiler 41, the 670 MBTU/hr coal fired
Boiler 42 in March 2018, and the 640 MBTU/hr coal-fired Boiler 43 in
March 2018. Four operating 98 MBTU/hr #6 fuel oil fired package boilers
have been retained as limited use boilers. New York also asserts that
the new natural gas boilers will significantly reduce both
NOX and SO2 emissions compared to historical and
NPS estimated emissions from the coal boilers. Finally, Lafarge
Building Materials, Inc. and Finch Paper, LLC were selected for further
analysis as part of the long-term strategy and will be discussed in a
later section of this proposed rulemaking.
---------------------------------------------------------------------------
\44\ RED-Rochester LLC Air Title V Permit. Available at https://www.dec.ny.gov/dardata/boss/afs/permits/826990012600001_r1.pdf.
---------------------------------------------------------------------------
The second MANE-VU contribution analysis used a meteorologically
weighted Q/d calculation to assess states' contributions to visibility
impairment at MANE-VU Class I areas.\45\ This analysis focused
predominantly on SO2 emissions and used the quantity of
cumulative SO2 emissions from a source for the variable of
``Q,'' and the distance of the source or state to the IMPROVE monitor
receptor at a Class I area as ``d.'' The result is then multiplied by a
constant (Ci), which is determined based on the prevailing
wind patterns. MANE-VU selected a meteorologically weighted Q/d
analysis as an inexpensive initial screening tool that could easily be
repeated to determine which states, sectors, or sources have a larger
relative impact and warrant further analysis. MANE-VU's analysis
estimated New York's maximum sulfate contribution was 4.66% at any
Class I area based on the maximum daily impact. The largest impacts
from New York's sulfate contributions were to Lye Brook Wilderness,
Vermont. Although MANE-VU did not originally estimate nitrate impacts,
the MANE-VU Q/d analysis was extended to account for nitrate
contributions from NOx emissions and to approximate the nitrate impacts
from area and mobile sources. MANE-VU therefore developed a ratio of
nitrate to sulfate impacts based on the previously described CALPUFF
modeling and applied those to the sulfate Q/d results in order to
derive nitrate contribution estimates. Several states did not have
CALPUFF nitrate to sulfate ratio results, however, because there were
no point sources modeled with CALPUFF.
---------------------------------------------------------------------------
\45\ The methodology used by MANE-VU for the meteorological
weighted Q/d analysis can be found in Appendix O of the NY RH 2nd
Implementation Period SIP submission, ``MANE-VU Updated Q/d*C
Contribution Assessment.''
---------------------------------------------------------------------------
In order to develop a final set of contribution estimates, MANE-VU
weighted the results from both the Q/d and CALPUFF analyses. The MANE-
VU mass-weighted sulfate and nitrate contribution results were reported
for the MANE-VU Class I areas (the Q/d summary report included results
for
[[Page 20396]]
several non-MANE-VU areas as well). If a state's contribution to
sulfate and nitrate concentrations at a particular Class I area was 2
percent or greater, MANE-VU regarded the state as contributing to
visibility impairment in the area. According to MANE-VU's analyses,
sources in New York have been found to contribute to visibility
impairment in downwind mandatory Class I areas. These mandatory Class I
areas are: Lye Brook Wilderness Area, Vermont; Brigantine Wildlife
Refuge, New Jersey; Presidential Range-Dry River Wilderness Area and
Great Gulf Wilderness Area, New Hampshire; Roosevelt-Campobello
International Park, Acadia National Park and Moosehorn Wildlife Refuge,
Maine; Dolly Sods Wilderness Area and Otter Creek Wilderness Area, West
Virginia; and Shenandoah National Park, Virginia. The largest New York
mass-weighted sulfate and nitrate contribution to any Class I area was
10.0% to Lye Brook Wilderness.\46\ Thus, New York concludes in its
regional haze submission, that it does contribute to visibility
impairment in Class I Federal areas, and that its contributions ``while
important, are not the most significant, with the contributions of
several states [Midwest RPO and VISTAS] outside the MANE-VU region
being significantly larger than New York's.'' \47\
---------------------------------------------------------------------------
\46\ See Pennsylvania's contribution of 20.0% in Table 10-1,
``Percent Mass-Weighted Sulfate and Nitrate Due to Emissions from
Listed States,'' of the NY RH 2nd Implementation Period SIP
submittal.
\47\ See Section 10.2.2 of the NY RH 2nd Implementation Period
SIP submittal and Appendix C: ``Selection of States for MANE-VU
Regional Haze Consultation (2018).''
---------------------------------------------------------------------------
As explained above, the EPA concluded in the 1999 RHR that ``all
[s]tates contain sources whose emissions are reasonably anticipated to
contribute to regional haze in a Class I area,'' (64 FR 35721, July 1,
1999), and this determination was not changed in the 2017 RHR.
Critically, the statute and regulation both require that the cause-or-
contribute assessment consider all emissions of visibility-impairing
pollutants from a state, as opposed to emissions of a particular
pollutant or emissions from a certain set of sources. Consistent with
these requirements, the 2019 Guidance makes it clear that ``all types
of anthropogenic sources are to be included in the determination'' of
whether a state's emissions are reasonably anticipated to result in any
visibility impairment. 2019 Guidance at 8.
The EPA notes that the screening analyses on which MANE-VU relied
are useful for certain purposes. MANE-VU used information from its
technical analysis to rank the largest contributing states to sulfate
and nitrate impairment in five Class I areas within MANE-VU states and
three additional, nearby Class I areas.\48\ The rankings were used to
determine upwind states that were deemed important to include in state-
to-state consultation (based on an identified impact screening
threshold). Additionally, large individual source impacts were used to
address specific components of MANE-VU's control analysis ``Asks'' \49\
of states and sources within and upwind of MANE-VU.\50\ The EPA finds
the nature of the analyses generally appropriate to support decisions
on states with which to consult. However, we have cautioned that source
selection methodologies that target the largest regional contributors
to visibility impairment across multiple states may not be reasonable
for a particular state if it results in few or no sources being
selected. 2021 Clarifications Memo at 3.
---------------------------------------------------------------------------
\48\ The Class I areas analyzed were Acadia National Park in
Maine, Brigantine Wilderness in New Jersey, Great Gulf Wilderness in
New Hampshire, Lye Brook Wilderness in Vermont, Moosehorn Wilderness
in Maine, Shenandoah National Park in Virginia, James River Face
Wilderness in Virginia, and Dolly Sods/Otter Creek Wildernesses in
West Virginia.
\49\ As explained more fully in Section IV.E.a, MANE-VU refers
to each of the components of its overall strategy as an ``Ask ``of
its member states.
\50\ The MANE-VU consultation report (Appendix E of the NY RH
2nd Implementation Period SIP submission) explains that ``[t]he
objective of this technical work was to identify states and sources
from which MANE-VU will pursue further analysis. This screening was
intended to identify which states to invite to consultation, not a
definitive list of which states are contributing.''
---------------------------------------------------------------------------
Further, the EPA reviewed the adequacy of MANE-VU's analysis and
determinations regarding New York's contribution to visibility
impairment at out-of-state Class I areas. The MANE-VU technical work
focuses on the magnitude of visibility impacts from certain New York
emissions on nearby Class I areas. However, the analyses did not
account for all emissions and all components of visibility impairment
(e.g., primary PM emissions, and impairment from fine PM, elemental
carbon, and organic carbon). In addition, Q/d analyses with a
relatively simplistic accounting for wind trajectories and CALPUFF
applied to a very limited set of EGUs and major industrial sources of
SO2 and NOX are not scientifically rigorous tools
capable of evaluating contribution to visibility impairment from all
emissions in a state. Although New York noted that the contributions
from several states outside the MANE-VU region are significantly larger
than its own, we again clarify that each state is obligated under the
CAA and Regional Haze Rule to address regional haze visibility
impairment resulting from emissions from within the state, irrespective
of whether another state's contribution is greater. See 2021
Clarifications Memo at 3. Additionally, we note that the 2 percent or
greater sulfate-plus-nitrate threshold used to determine whether New
York emissions contribute to visibility impairment at a particular
Class I area may be higher than what EPA believes is an ``extremely low
triggering threshold'' intended by the statute and regulations. In sum,
based on the information provided, emissions from New York contribute
to visibility impairment in Class I areas in Maine, New Jersey, New
Hampshire, Vermont, Virginia, and West Virginia.\51\ The EPA generally
agrees with this conclusion. However, due to the low triggering
threshold implied by the Rule and the lack of rigorous modeling
analyses, we do not necessarily agree with the level of the State's 2%
contribution threshold as a general matter.
---------------------------------------------------------------------------
\51\ See Section 1.4, ``Mandatory Class I Federal Areas Affected
by New York State'' of the NY RH 2nd Implementation Period SIP
submission.
---------------------------------------------------------------------------
Regardless, we note that New York did determine that sources and
emissions within the State contribute to visibility impairment at out-
of-state Class I areas. Furthermore, New York took part in the emission
control strategy consultation process as a member of MANE-VU. As part
of that process, MANE-VU developed a set of emissions reduction
measures identified as being necessary to make reasonable progress in
the five MANE-VU Class I areas. MANE-VU refers to each component of its
overall strategy as an ``Ask'' of participating states. This strategy
consists of six ``Asks'' for states within MANE-VU, and five Asks for
states outside the region that were found to impact visibility at Class
I areas within MANE-VU.\52\ New York's submission discusses each of the
Asks and explains why or why not each is applicable and how it has
complied with the relevant components of the emissions control strategy
MANE-VU has laid out for its states. New York worked with MANE-VU to
determine potential reasonable measures that could be implemented by
2028, considering the cost of compliance, the time necessary for
compliance, the energy and non-air quality
[[Page 20397]]
environmental impacts, and the remaining useful life of any potentially
affected sources. Although we have concerns regarding some aspects of
MANE-VU's technical analyses supporting states' contribution
determinations as a general matter, we propose to find that New York
has nevertheless satisfied the applicable requirements for making
reasonable progress towards natural visibility conditions in Class I
areas that may be affected be emissions from the state.
---------------------------------------------------------------------------
\52\ See appendix H of the NY RH 2nd Implementation Period SIP
submission, ``Statement of the Mid-Atlantic/Northeast Visibility
Union (MANE-VU) Concerning a Course of Action within MANE-VU toward
Assuring Reasonable Progress for the Second Regional Haze
Implementation Period (2018-2028), (August 2017).''
---------------------------------------------------------------------------
Specifically, as discussed in further detail below, the EPA is
proposing to find that New York has submitted a regional haze plan that
meets the requirements of 40 CFR 51.308(f)(2) related to the
development of a long-term strategy.
D. Calculations of Baseline, Current, and Natural Visibility
Conditions; Progress to Date; and the Uniform Rate of Progress
Section 51.308(f)(1) requires states to determine the following for
``each mandatory Class I Federal area located within the State'':
baseline visibility conditions for the most impaired and clearest days,
natural visibility conditions for the most impaired and clearest days,
progress to date for the most impaired and clearest days, the
differences between current visibility conditions and natural
visibility conditions, and the URP. This section also provides the
option for states to propose adjustments to the URP line for a Class I
area to account for impacts from anthropogenic sources outside the
United States and/or the impacts from wildland prescribed fires that
were conducted for certain, specified objectives. 40 CFR
51.308(f)(1)(vi)(B).
Because New York does not have any Class I areas within its
borders, it is not required to calculate baseline, current, and natural
visibility conditions, or to calculate a URP.\53\ Thus, the EPA finds
that the requirements under this section have been satisfied by New
York.
---------------------------------------------------------------------------
\53\ While New York noted that it was not required to comply
with 40 CFR 51.308(f)(1), elsewhere in its SIP submission (See
section 5) it included visibility metrics of nearby Class I areas,
which were taken from, ``Mid-Atlantic/Northeast U.S. Visibility Data
2004-2016 (2nd RH SIP Metrics) (MANE-VU, August 2018).''
---------------------------------------------------------------------------
E. Long-Term Strategy for Regional Haze
Each state having a Class I area within its borders or emissions
that may affect visibility in a Class I area must develop a long-term
strategy for making reasonable progress towards the national visibility
goal. CAA 169A(b)(2)(B). As explained in the Background section of this
notice, reasonable progress is achieved when all states contributing to
visibility impairment in a Class I area are implementing the measures
determined--through application of the four statutory factors to
sources of visibility impairing pollutants--to be necessary to make
reasonable progress. 40 CFR 51.308(f)(2)(i). Each state's long-term
strategy must include the enforceable emission limitations, compliance
schedules, and other measures that are necessary to make reasonable
progress. 40 CFR 51.308(f)(2). All new (i.e., additional) measures that
are the outcome of four-factor analyses are necessary to make
reasonable progress and must be in the long-term strategy. If the
outcome of a four-factor analysis is that no new measures are
reasonable for a source, that source's existing measures are necessary
to make reasonable progress, and must therefore be included in the SIP,
unless the state can demonstrate that the source will continue to
implement those measures and will not increase its emission rate.
Existing measures that are necessary to make reasonable progress must
also be in the long-term strategy. In developing its long-term
strategies, states must also consider the five additional factors in 40
CFR 51.308(f)(2)(iv). As part of its reasonable progress determination,
the state must describe the criteria used to determine which sources or
group of sources were evaluated (i.e., subjected to four-factor
analysis) for the second implementation period and how the four factors
were taken into consideration in selecting the emission reduction
measures for inclusion in the long-term strategy. 40 CFR
51.308(f)(2)(iii).
The following subsections summarize how New York's SIP submission
addressed the requirements of 40 CFR 51.308(f)(2)(i). As explained
above, New York relied on MANE-VU's technical analyses and framework
(i.e., the Asks), in addition to their review of sources identified by
FLMs, to form the basis of its long-term strategy to address reasonable
progress. Thus, section IV.E.a., ``New York's Response to the Six MANE-
VU Asks,'' describes MANE-VU's development of the six Asks and how New
York addressed each. Section IV.E.b., ``The EPA's Evaluation of New
York's Response to the Six MANE-VU Asks and Compliance with 40 CFR
51.308(f)(2)(i),'' then discusses EPA's evaluation of New York's SIP
revision with regard to the same.
a. New York's Response to the Six MANE-VU Asks
States may rely on technical information developed by the RPOs of
which they are members to select sources for four-factor analysis and
to conduct that analysis, as well as to satisfy the documentation
requirements under 40 CFR 51.308(f). Where an RPO has performed source
selection and/or four-factor analyses (or considered the five
additional factors in 40 CFR 51.308(f)(2)(iv)) for its member states,
those states may rely on the RPO's analyses for the purpose of
satisfying the requirements of 40 CFR 51.308(f)(2)(i) so long as the
states have a reasonable basis to do so and all state participants in
the RPO process have approved the technical analyses. 40 CFR
51.308(f)(3)(iii). States may also satisfy the requirement of 40 CFR
51.308(f)(2)(ii) to engage in interstate consultation with other states
that have emissions that are reasonably anticipated to contribute to
visibility impairment in a given Class I area under the auspices of
intra- and inter-RPO engagement.
New York is a member of the MANE-VU RPO and participated in the
RPO's regional approach to developing a strategy for making reasonable
progress towards the national visibility goal in the MANE-VU Class I
areas. MANE-VU's strategy includes a combination of (1) measures for
certain source sectors and groups of sectors that the RPO determined
were reasonable for states to pursue, and (2) a request for member
states to conduct four-factor analyses for individual sources that it
identified as contributing to visibility impairment. As described
above, MANE-VU refers to each of the components of its overall strategy
as an Ask of its member states. On August 25, 2017, the Executive
Director of MANE-VU, on behalf of the MANE-VU states and Tribal
nations, signed a statement that identifies six emission reduction
measures that comprise the Asks for the second implementation
period.\54\ The Asks were ``designed to identify reasonable emission
reduction strategies that must be addressed by the states and Tribal
nations of MANE-VU through their regional haze SIP updates.'' \55\ The
statement explains that ``[i]f any State cannot agree with or complete
a Class I
[[Page 20398]]
State's Asks, the State must describe the actions taken to resolve the
disagreement in the Regional Haze SIP.'' \56\
---------------------------------------------------------------------------
\54\ See appendix H of the NY RH 2nd Implementation Period SIP
submission, ``Statement of the Mid-Atlantic/Northeast Visibility
Union (MANE-VU) States Concerning a Course of Action Within MANE-VU
Toward Assuring Reasonable Progress for the Second Regional Haze
Implementation Period (2018-2028)'' at 1, August 25, 2017.
\55\ Id.
\56\ Id.
---------------------------------------------------------------------------
MANE-VU's recommendations as to the appropriate control measures
were based on technical analyses documented in the RPO's reports and
included as appendices to or referenced in New York's regional haze SIP
submission. One of the initial steps of MANE-VU's technical analysis
was to determine which visibility-impairing pollutants should be the
focus of its efforts for the second implementation period. In the first
implementation period, MANE-VU determined that sulfates were the most
significant visibility impairing pollutant at the region's Class I
areas. To determine the impact of certain pollutants on visibility at
Class I areas for the purpose of second implementation period planning,
MANE-VU conducted an analysis comparing the pollutant contribution on
the clearest and most impaired days in the baseline period (2000-2004)
to the most recent period (2012-2016) \57\ at MANE-VU and nearby Class
I areas. MANE-VU found that while SO2 emissions were
decreasing and visibility was improving, sulfates still made up the
most significant contribution to visibility impairment at MANE-VU and
nearby Class I areas. According to the analysis, NOX
emissions have begun to play a more significant role in visibility
impacts in recent years as SO2 emissions have decreased. The
technical analyses used by New York are included in their submission to
the EPA and are as follows:
---------------------------------------------------------------------------
\57\ The period of 2012-2016 was the most recent period for
which data was available at the time of analysis.
---------------------------------------------------------------------------
2016 Updates to the Assessment of Reasonable Progress for
Regional Haze in MANE-VU Class I Areas (Appendix M);
2016 MANE-VU Source Contribution Modeling Report--CALPUFF
Modeling of Large Electrical Generating Units and Industrial Sources
April 4, 2017 (Appendix K);
Regional Haze Metrics Trends and HYSPLIT Trajectory
Analyses. May 2017. (Appendix L);
Selection of States for MANE-VU Regional Haze Consultation
(2018) (MANE-VU Technical Support Committee. September 2017. (Appendix
C); and
Furthermore, technical analyses New York's submission also
references, but New York did not include within its submission, include
the following documents:
Technical Support Document for the 2011 Ozone Transport
Commission/Mid-Atlantic Northeastern Visibility Union Modeling Platform
(Ozone Transport Commission, September 2018);
Impact of Wintertime SCR/SNCR Optimization on Visibility
Impairing Nitrate Precursor Emissions (prepared by the MANE-VU
Technical Support Committee, November 20, 2017); and
Technical Memorandum: Four Factor Data Collection
(prepared by MANE-VU Technical Support Committee March 30, 2017).
To support development of the Asks, MANE-VU gathered information on
each of the four factors for six source sectors it determined, based on
an examination of annual emission inventories, ``had emissions that
were reasonabl[y] anticipated to contribute to visibility degradation
in MANE-VU:'' electric generating units (EGUs), industrial/commercial/
institutional boilers (ICI boilers), cement kilns, heating oil,
residential wood combustion, and outdoor wood combustion.\58\ MANE-VU
also collected data on individual sources within the EGU, ICI boiler,
and cement kiln sectors.\59\ Information for the six sectors included
explanations of technically feasible control options for SO2
or NOX, illustrative cost-effectiveness estimates for a
range of model units and control options, sector-wide cost
considerations, potential time frames for compliance with control
options, potential energy and non-air-quality environmental impacts of
certain control options, and how the remaining useful lives of sources
might be considered in a control analysis.\60\ Source-specific data
included SO2 emissions \61\ and existing controls \62\ for
certain existing EGUs, ICI boilers, and cement kilns. MANE-VU
considered this information on the four factors as well as the analyses
developed by the RPO's Technical Support Committee when it determined
specific emission reduction measures that were found to be reasonable
for certain sources within two of the sectors it had examined--EGUs and
ICI boilers. The Asks were based on this analysis and looked to either
optimize the use of existing controls, have states conduct further
analysis on EGU or ICI boilers with considerable visibility impacts,
implement low sulfur fuel standards, or lock-in lower emission rates.
---------------------------------------------------------------------------
\58\ MANE-VU Four Factor Data Collection Memo at 1, March 30,
2017, available at https://otcair.org/MANEVU/Upload/Publication/Reports/Four-Factor%20Data%20Collection%20Memo%20-%20170314.pdf. The
six sectors were identified in the first implementation period
pursuant to MANE-VU's contribution assessment; MANE-VU subsequently
updated its information on these sectors for the second
implementation period.
\59\ See appendix M of the NY RH 2nd Implementation Period SIP
submission, ``2016 Updates to the Assessment of Reasonable Progress
for Regional Haze in MANE-VU Class I Areas, Jan. 31, 2016.''
\60\ Id.
\61\ Table 1 of MANE-VU's ``Four Factor Data Collection Memo''
March 30, 2017 contains 2011 SO2 data from specific
sources.
\62\ The ``Status of the Top 167 Electric Generating Units
(EGUs) that Contributed to Visibility Impairment at MANE-VU Class I
Areas during the 2008 Regional Haze Planning Period,'' July 25,
2016, reviews the existing and soon to be installed, at the time of
the report, emission controls at individual EGU sources that were a
part of the MANE-VU Ask from the first implementation period.
Available at: https://otcair.org/MANEVU/Upload/Publication/Reports/Status%20of%20the%20Top%20167%20Stacks%20from%20the%202008%20MANE-VU%20Ask.pdf.
---------------------------------------------------------------------------
MANE-VU Ask 1 is ``ensuring the most effective use of control
technologies on a year-round basis'' at EGUs with a nameplate capacity
larger than or equal to 25 megawatts (MW) with already installed
NOX and/or SO2 controls.\63\ In its submission,
New York explained that the control limits required by its Reasonably
Available Control Technology (RACT) rule, SIP-approved 6 NYCRR subpart
227-2, ``Reasonably Available Control Technology (RACT) for Major
Facilities of Oxides of Nitrogen (NOX),'' include year-round
emission limits of NOX for EGUs with a nameplate capacity
larger than or equal to 25 MW.\64\ Regarding control of SO2
emissions, under 6 NYCRR subpart 225, ``Fuel Consumption and Use,''
which was last approved by the EPA on August 23, 2018 (See 83 FR
42589), any stationary combustion installation that fires solid or
liquid fuels is required to meet the sulfur-in-fuel standards of the
subpart.\65\ Additionally, New York explained that the SIP-approved 6
NYCRR Part 245, ``CSAPR SO2 Group 1 Trading Program'' (See
84 FR 38878), will distribute Federal SO2 CSAPR allowances
to EGUs for the purpose of reducing PM2.5 in New York State
and downwind states by limiting emissions of SO2 year-round
from fossil fuel-fired EGUs. Thus, based on the information regarding
SIP-approved 6 NYCRR Parts 225, 227, and 245, New York explains that
its operating permits for EGUs, including
[[Page 20399]]
those which are for EGUs with a nameplate capacity larger than or equal
to 25 MW, require that controls be run year-round for both
NOX and SO2 by setting emission limits in permits
that reflect the emission levels when the controls are in operation to
ensure the most effective use of control technologies. New York
therefore concluded that it is meeting Ask 1.
---------------------------------------------------------------------------
\63\ See appendix H of the NY RH 2nd Implementation Period SIP
submission.
\64\ See NYCRR Part 227-2, ``Reasonably Available Control
Technology (RACT) for Major Facilities of Oxides of Nitrogen
(NOX),'' which applies to all EGUs and sets emission
limits that can only be achieved with year-round operation of
controls.
\65\ New York submitted additional revisions to 6 NYCRR 225-1.
The EPA proposed approval. 87 FR 64428 (October 25, 2022).
---------------------------------------------------------------------------
MANE-VU Ask 2 consists of a request that states ``perform a four-
factor analysis for reasonable installation or upgrade to emissions
controls'' for specified sources. MANE-VU developed its Ask 2 list of
sources for analysis by performing modeling and identifying facilities
with the potential for 3.0 inverse megameters (Mm-1) or
greater impacts on visibility at any Class I area in the MANE-VU
region. Finch Paper and Lafarge Building Materials are the two sources
in New York State that were identified by Ask 2.
In section 10.6.3, ``Significant Visibility Impact Emission
Sources,'' of New York's submittal, an analysis addressing each of the
four-factors is provided for Finch Paper and Lafarge Building
Materials. New York's analysis for Finch Paper determined that the
phased-in switch from No. 6 fuel oil to natural gas in their boilers
(completed by the end of 2015) and the boiler and combustion tune-ups,
consistent with 40 CFR part 63 subpart DDDDD Boiler MACT Rule
(especially for boilers 4 and 5), were adequate upgrades to control
emissions. Additionally, New York's analysis for Lafarge Building
Materials determined that major renovations which included the
replacement of the facility's two wet process kilns with a dry process
kiln and the installation of a wet scrubber and Selective Non-Catalytic
Reduction (SNCR) to the kiln system to be adequate upgrades to control
emissions. Both facilities have undergone major updates since the 2011
emissions data was collected, which included the implementation of
emission control strategies, resulting in no additional time necessary
to comply. Additionally, both facilities have SIP-approved controls
installed that limit their potential contribution to visibility
impairment.
In addition to the analyses conducted for Finch Paper and Lafarge
Building Materials, New York provided information regarding controls
and emissions at the facilities within New York that were identified by
the FLMs during consultation. The following discussion is related to
information New York provided pertaining to FLM concerns.
The Anchor Glass Container Corporation facility in Elmira is
subject to a 2018 Consent Decree with EPA that contains a compliance
schedule for controls to be implemented on the facility's two furnaces
(Elmira 1 and Elmira 2). New York indicated that both furnaces will be
rebuilt and will burn oxyfuel or install a selective catalytic
reduction (SCR) unit to minimize NOX emissions. These
controls were implemented for Elmira 1 in 2021. Additionally, a
scrubber system and an electrostatic precipitator (ESP) were installed
on Elmira 1 in 2021. Elmira 2 underwent batch optimization in 2021 and
will burn oxyfuel or install a selective catalytic reduction (SCR) by
December 31, 2029.
Moreover, New York indicated that Morton Salt Division converted
its boilers from firing coal to natural gas. That said, a new natural
gas 148 MMBtu/hr steam boiler and eight small direct fired building
heaters replaced an existing 138 MMBtu/hr coal boiler and an existing
92.5 MMBtu/hr natural gas boiler. According to the State, the new
natural gas 148 MMBtu/hr steam boiler is subject to the relevant
presumptive RACT emission limit of 0.06 pounds NOX per
million Btu burning only natural gas. Notably, this conversion reduced
emissions below the major source threshold and, as a result, the
facility's Title V permit was replaced by an Air State Facility
permit.\66\
---------------------------------------------------------------------------
\66\ See Air State Facility permit at: https://extapps.dec.ny.gov/data/dar/afs/permits/956320000700045_r0.pdf.
---------------------------------------------------------------------------
The Bowline Point Generating Station switched to natural gas but
will be allowed to burn oil as a backup. Additionally, Lehigh Northeast
Cement operates with a dry process, which has fewer emissions than wet
processes, and a selective noncatalytic reduction (SNCR) began
operation July 2012. Notably, Northport Power Station burned much less
#6 high sulfur fuel oil in 2016 and 2017 and, as a result of 6 NYCRR
225-1, ``Sulfur-in-fuel limitations,'' the sulfur content of #6 fuel
oil used at the facility has decreased providing for an additional
reduction of SO2 emissions over the past years.
Furthermore, New York claims that water injection, dry low
NOX burners, and SCR are used to control NOX
emissions, along with the use of an oxidation catalyst to control CO
and VOC emissions at the Con Edison-East River Generating Station
facility. At Ravenswood Generating Station, dry low NOX
burners and SCR are used to control NOX emissions from unit
U-CC001. In addition, emissions of VOC and CO are controlled using an
oxidation catalyst and New York only allows distillate oil to be burned
for 720 hours per year. The Globe Metallurgical, Inc., plant shutdown
indefinitely due to market conditions in December 2018. Also, the
Roseton Generating Station exclusively burns natural gas during the
ozone season and burns natural gas and No. 6 fuel oil during the
remainder of the year. PM emission from Units 1 & 2 are controlled with
a mechanical dust collector and NOX emissions are controlled
with ``Burners Out Of Service'' (BOOS) controls, oil steam atomization,
and windbox flue gas recirculation at the Roseton facility.
Moreover, Cargill Salt Co.'s Watkins Glen Plant shutdown four
boilers (two coal-fired and two natural gas-fired) in 2013, totaling
228 MMBtu/hr heat input capacity. The four boilers that were shutdown
were replaced by one 181 MMBtu/hr natural gas-fired boiler, equipped
with a low-NOX burner. The replacement boiler is subject to
a 0.1 lbs NOX/MMBtu heat input limit that is monitored using
a Continuous Emissions Monitoring System (CEMS), and as a result of
these changes, the plant is no longer considered a major facility
subject to a Title V permit. Norlite Corporation has had its permit
emission limits reduced from 61 lb/hr of NOX and 30 lb/hr of
SO2 in 2011, to 22.4 lb/hr of NOX and 28 lb/hr of
SO2. As a result, NOX and SO2
emissions at Norlite decreased from 80.7 tons in 2011 to 78.8 tons in
2017 and 124.9 tons in 2011 to 60.4 tons in 2017 respectively. New York
therefore concluded that it satisfies Ask 2.
Ask 3 is for each MANE-VU state to pursue an ultra low-sulfur fuel
oil standard if it has not already done so in the first implementation
period.\67\ The Ask includes percent by weight standards for #2
distillate oil (0.0015% sulfur by weight or 15 ppm), #4 residual oil
(0.25-0.5% sulfur by weight), and #6 residual oil (0.3-0.5% sulfur by
weight). New York explains that it has already implemented a low-sulfur
fuel standard and does not need to take further action by 2028. In
2018, the EPA approved into the New York SIP New York's regulation to
reduce the sulfur content of fuel oil, 6 NYCRR 225-1. 83 FR 42589 (Aug.
23, 2018). The final rule limited firing of all residual oil to a range
of 0.3 to 0.5% sulfur by weight depending on the area and a 15 ppm
limit (0.0015% sulfur by weight) on #2 oil starting July 1, 2014. The
ultra low-sulfur fuel oil regulations in New York are a part of its
[[Page 20400]]
long-term strategy. New York therefore concluded that it is meeting Ask
3.
---------------------------------------------------------------------------
\67\ MANE-VU's analysis, which New York relied on, is found in
``Appendix M-2016 Updates to the Assessment of Reasonable Progress
for Regional Haze in MANE-VU Class I Areas.''
---------------------------------------------------------------------------
MANE-VU Ask 4 requests states to update permits to ``lock in''
lower emissions rates for NOX, SO2, and PM at
emissions sources larger than 250 million British Thermal Units (MMBtu)
per hour heat input that have switched to lower emitting fuels.
According to New York's SIP submission, New York updates permits for
large point emission sources every five years for Title V facilities,
every ten years for Air State Facilities, and whenever both Title V and
Air State facilities make a major update. New York explains that it
will also require the use of lower emitting fuel in the permits when
these permits are updated. Additionally, New York's submittal indicates
that it has adopted 6 NYCRR part 251, ``CO2 Performance Standards for
Major Electric Generating Facilities,'' which requires all power plants
in New York to meet new emissions limits for carbon dioxide
(CO2) and will end the use of coal in New York State power
plants. Although this state regulation has not been submitted to the
EPA for incorporation into New York's SIP, it is expected that
emissions of visibility impairing pollutants will decrease once power
plants cease the burning of coal. In addition, New York has stringent
SIP-approved limits for coal operated units in its 6 NYCRR subpart 227-
2, ``RACT for Major Facilities of NOX provisions.'' This
rule limits presumptive NOX emission limits to the range of
0.08 to 0.20 pounds per million BTU (lb/MMBtu), depending upon the type
of fuel and boiler configuration, for sources with emissions larger
than 250 million British Thermal Units (MMBtu) per hour heat input. New
York therefore concluded it is meeting Ask 4.
Ask 5 requests that states ``control NOX emissions for
peaking combustion turbines \68\ that have the potential to operate on
high electric demand days'' by either (1) meeting NOX
emissions standards specified in the Ask for turbines that run on
natural gas and for fuel oil, (2) performing a four-factor analysis for
reasonable installation of or upgrade to emission controls, or (3)
obtaining equivalent emission reductions on high electric demand
days.\69\ The Ask requests states to strive for NOX emission
standards of no greater than 25 ppm for natural gas and 42 ppm for fuel
oil, or at a minimum, NOX emission standards of no greater
than 42 ppm for natural gas and 96 ppm for fuel oil. New York's
submission states that it adopted 6 NYCRR subpart Part 227-3 \70\ on
December 11, 2019, to, among other things, limit emissions from simple
cycle combustion turbines (peaking units) that operate on high electric
demand days.\71\ The rule limits NOX emission rates to 25
ppm at 15% O2 for natural gas and 42 ppm at 15%
O2 for fuel oil. This rule helps to achieve ground-level
ozone reductions and, as a result, is expected to improve visibility in
mandatory Class I Federal areas in response to the Ask.\72\ In 2021,
the EPA approved into the New York SIP, New York's regulation (6 NYCRR
227-3) to limit emissions from simple cycle combustion turbines
(peaking units) that operate on high electric demand days. 86 FR 43956
(Aug. 11, 2021). New York therefore concluded it is meeting Ask 5.
---------------------------------------------------------------------------
\68\ Peaking combustion turbine is defined for the purpose of
this Ask as a turbine capable of generating 15 megawatts or more,
that commenced operation prior to May 1, 2007, is used to generate
electricity all or part of which is delivered to electric power
distribution grid for commercial sale and that operated less than or
equal to an average of 1,752 hours (or 20%) per year during 2014 to
2016.
\69\ See appendix H of the NY RH 2nd Implementation Period SIP
submission.
\70\ New York submitted 6 NYCRR Subpart 227-3, ``Ozone Season
Oxides of Nitrogen (NOX) Emission Limits for Simple Cycle
and Regenerative Combustion Turbines'' to the EPA on May 18, 2020.
\71\ High electric demand days are days when higher than usual
electrical demands bring additional generation units online, many of
which are infrequently operated and may have significantly higher
emissions rates of the generation fleet.
\72\ See section 10.6.6 of the NY RH 2nd Implementation Period
SIP submission.
---------------------------------------------------------------------------
The last Ask for states within MANE-VU, Ask 6, requests states to
report in their regional haze SIPs about programs that decrease energy
demand and increase the use of combined heat and power (CHP) and other
distributed generation technologies such as fuel cells, wind and solar.
New York explains in its SIP submission that it ``is a leader in
adopting energy efficiency and renewable energy programs and is always
investigating additional programs that will decrease use of fossil
fuels in energy generation.'' \73\ Section 10.3.7 of its SIP submission
specifically cites the New York State Energy Research and Development
Authority (NYSERDA) which provides funding and technical assistance in
many programs that result in reductions of emissions of PM and its
precursors as well as New York's Department of Public Service that also
has current energy programs. New York therefore concluded it is meeting
Ask 6.
---------------------------------------------------------------------------
\73\ See section 10.6.7 of the NY RH 2nd Implementation Period
SIP submission.
---------------------------------------------------------------------------
b. The EPA's Evaluation of New York's Response to the Six MANE-VU Asks
and Compliance With 40 CFR 51.308(f)(2)(i)
The EPA is proposing to find that New York has satisfied the
requirements of 40 CFR 51.308(f)(2)(i) related to evaluating sources
and determining the emission reduction measures that are necessary to
make reasonable progress by considering the four statutory factors. We
are proposing to find that New York has satisfied the four-factor
analysis requirement through its analysis and actions to address the
MANE-VU Asks.
As explained above, New York relied on MANE-VU's technical analysis
and framework (i.e., the Asks), in addition to their review of sources
identified by FLMs, to select sources and form the basis of its long-
term strategy. MANE-VU conducted an inventory analysis to identify the
source sectors that produced the greatest amount of SO2 and
NOX emissions in 2011 and inventory data were also projected
to 2018. Based on this analysis, MANE-VU identified the top-emitting
sectors for each of the two pollutants, which for SO2
include coal-fired EGUs, industrial boilers, oil-fired EGUs, and oil-
fired area sources including residential, commercial, and industrial
sources. Additionally, major-emitting sources of NOX include
on-road vehicles, non-road vehicles, and EGUs.\74\ The RPO's
documentation explains that ``[EGUs] emitting SO2 and
NOX and industrial point sources emitting SO2
were found to be sectors with high emissions that warranted further
scrutiny. Mobile sources were not considered in this analysis because
any ask concerning mobile sources would be made to EPA and not during
the intra-RPO and inter-RPO consultation process among the states and
tribes.'' \75\ The EPA proposes to find that New York reasonably
evaluated the two pollutants, SO2 and NOX, that
currently drive visibility impairment within the MANE-VU region and
that it adequately explained and supported its decision to focus on
these two pollutants through its reliance on the MANE-VU technical
analyses cited in its submission.
---------------------------------------------------------------------------
\74\ See appendix G of NY RH 2nd Implementation Period SIP
submission, ``Contribution Assessment Preliminary Inventory
Analysis'' (Oct. 10, 2016).
\75\ See docket document ``Statement of MANE-VU Concerning a
Course of Action by Federal Agencies for the 2nd pp.''
---------------------------------------------------------------------------
Section 51.308(f)(2)(i) requires states to evaluate and determine
the emission reduction measures that are necessary to make reasonable
progress by applying the four statutory factors to sources in a control
analysis. As explained
[[Page 20401]]
previously, the MANE-VU Asks are a mix of measures for sectors and
groups of sources identified as reasonable for states to address in
their regional haze plans. While MANE-VU formulated the Asks to be
``reasonable emission reduction strategies'' to control emissions of
visibility impairing pollutants,\76\ the EPA believes that Asks 2 and
3, in particular, engage with the requirement that states determine the
emission reduction measures that are necessary to make reasonable
progress through consideration of the four factors. As laid out in
further detail below, the EPA is proposing to find that MANE-VU's four-
factor analysis conducted to support the emission reduction measures in
Ask 3 (ultra-low sulfur fuel oil Ask), in conjunction with New York's
supplemental analysis and explanation of how it has complied with Ask 2
(perform four-factor analyses for sources with potential for >=3
Mm-1 impacts) satisfy the requirement of 40 CFR
51.308(f)(2)(i). The emission reduction measures that are necessary to
make reasonable progress must be included in the long-term strategy,
i.e., in New York's SIP. See 40 CFR 51.308(f)(2)(i).
---------------------------------------------------------------------------
\76\ See Appendix H of NY RH 2nd Implementation Period SIP
submission, ``Statement of MANEVU Concerning a Course of Action
Within MANEVU Toward Assuring Reasonable Progress for the Second
Implementation.''
---------------------------------------------------------------------------
As for Ask 1, New York concluded that it satisfied the ask because
its SIP-approved regulations include year-round emission limits for
EGUs with a nameplate capacity larger than or equal to 25 MW and
because it already requires that controls be run year-round for both
NOX and SO2 by setting emission limits in permits
that reflect the emission levels when the controls are run. New York
also explains in its response to public comments that it has very
stringent sulfur in fuel regulations and that there are no coal units
remaining in New York. New York's SIP approved (78 FR 41846, July 12,
2013) Reasonably Available Control Technology (RACT) for Major
Facilities of Oxides of Nitrogen (NOX), limits emissions
from boilers, combustion turbines, stationary internal combustion
engines, and other combustion installations through the requirement of
year-round controls. The New York RACT rule includes maximum
NOX emission limits of 0.2 pounds NOX per million
Btu for coal fuel types, 0.2 pounds NOX per million Btu for
gas/oil fuel types and 0.08 pounds NOX per million Btu for
gas only fuel types. Furthermore, New York's SIP-approved sulfur limits
(6 NYCRR 225-1) include year-round limits. 83 FR 42589 (Aug. 23,
2018).\77\ The final rule limited firing of all residual oil to a range
of 0.3 to 0.5% sulfur by weight depending on the area and a 15 ppm
limit (0.0015% sulfur by weight) on #2 oil. New York's SIP-approved
SO2 and NOX RACT requirements in 6 NYCRR subpart
225-1 and 227-2 limit SO2 and NOX emissions from
EGUs with a nameplate capacity larger than or equal to 25 MW consistent
with the year-round operation of control technologies. Thus, the EPA
proposes to find that New York reasonably concluded that it has
satisfied Ask 1.
---------------------------------------------------------------------------
\77\ New York revised 6 NYCRR 225 and submitted such revisions
to the EPA for approval into the SIP on August 28, 2020 and March 3,
2021. The EPA proposed approval on October 25, 2022. See 87 FR
66428.
---------------------------------------------------------------------------
Ask 2 addresses the sources MANE-VU determined to have the
potential for larger than, or equal to, 3 Mm-1 visibility
impact at any MANE-VU Class I area; the Ask requests MANE-VU states to
conduct four-factor analyses for the specified sources within their
borders. This Ask explicitly engages with the statutory and regulatory
requirement to determine reasonable progress based on the four factors;
MANE-VU considered it ``reasonable to have the greatest contributors to
visibility impairment conduct a four-factor analysis that would
determine whether emission control measures should be pursued and what
would be reasonable for each source.'' \78\
---------------------------------------------------------------------------
\78\ See Appendix E of NY RH 2nd Implementation Period SIP
submission, ``MANE-VU Regional Haze Consultation Report.''
---------------------------------------------------------------------------
As discussed above, EPA does not necessarily agree that the 3.0
Mm-1 visibility impact is a reasonable threshold for source
selection. The RHR recognizes that, due to the nature of regional haze
visibility impairment, numerous and sometimes relatively small sources
may need to be selected and evaluated for control measures in order to
make reasonable progress. See 2021 Clarifications Memo at 4. As
explained in the 2021 Clarifications Memo, while states have discretion
to choose any source selection threshold that is reasonable, ``[a]
state that relies on a visibility (or proxy for visibility impact)
threshold to select sources for four-factor analysis should set the
threshold at a level that captures a meaningful portion of the state's
total contribution to visibility impairment to Class I areas.'' 2021
Memo at 3. In this case, the 3.0 Mm-1 threshold identified
two sources in New York (and only 22 across the entire MANE-VU region),
indicating that it may be unreasonably high. However, as explained in
more detail below, we propose to find that New York's additional
information and explanation indicates that the State in fact examined a
reasonable set of sources and reasonably concluded that four-factor
analyses for additional sources are not necessary because the outcome
would be that no further emission reductions would be reasonable.
MANE-VU identified two large EGUs or other industrial sources of
visibility impairing pollutants within New York, Finch Paper and
Lafarge Building Materials. As detailed in New York's submission, the
EPA notes that both facilities have undergone updates since the 2011
emissions data was collected and have installed SIP-approved controls
that limit their potential maximum light extinction impact below 3.0
(Mm-1) and well below their previous levels.
In section 10.6.3 of New York's submittal, New York addresses each
of the four-factors for the controls that were implemented at Finch
Paper after the 2011 emissions data was collected. New York also
submitted a Source-Specific State Implementation Plan Revision (SSSR)
for Finch Paper to the EPA on May 18, 2022.\79\ The EPA proposed to
approve the SSSR on January 19, 2024. See 89 FR 3620. Appendix A \80\
of the SSSR contains Finch's technical evaluation of the currently
permitted Reasonably Available Control Technology (RACT) for
NOX as well as NOX RACT analysis dated 2019.
---------------------------------------------------------------------------
\79\ See docket document ``Finch Source Specific State
Implementation Plan Revision.''
\80\ See docket document ``COMPLETE
SSSR.2022MAY18.Finch.2EPA20220524.pdf.''
---------------------------------------------------------------------------
Finch's 2019 RACT analysis determined that six technologies were
technically feasible for the power boilers. Those technologies include
decommissioning/idling sources, fuel switch excusive to natural gas,
third generation Low NOX burners, Selective Catalytic
Reduction (SCR), and purchasing electricity in lieu of generating it
onsite. Finch then performed a cost analysis for third generation low
NOX burners, SCR, and purchasing electricity since it had
already implemented the other identified control technologies. Finch's
cost analysis of low NOX burner resulted in a cost of $6,998
per ton NOX removed and was considered economically
infeasible. Finch's analysis of SCR resulted in a cost of $15,358 per
ton NOX removed and was considered economically infeasible.
Finch's cost analysis of purchasing electricity instead of generating
[[Page 20402]]
electricity onsite with No.4 boiler and No.5 boiler being capped,
resulted in a cost of $5,774 per ton NOX removed and was not
considered a reasonable available control technology.
Appendix A of New York's SSSR submission \81\ also includes Finch's
reevaluation of the 2019 NOX RACT analysis requirements
(``2021 RACT analysis''), as part of the facility's Title V Operating
Permit renewal application. In the 2021 RACT analysis, Finch compared
the actual emission rates to established emission limits for each
source type. For the Power Boilers, the calculated 30-day averages are
within approximately 2-9% of the established limits for the power
boilers. The emission testing results for the No.9 Wood Waste Boiler
showed that the emissions are within approximately 10% of the
established RACT limit. The Recovery Boilers emission limit was also
evaluated, and Finch found that the actual emissions were within 4-19%
of the established limits. Based on the 2021 RACT analysis, Finch
determined that they are demonstrating ongoing compliance with the
emission limits within a reasonable margin and proposed to retain the
current NOX emission limits as RACT.
---------------------------------------------------------------------------
\81\ Id.
---------------------------------------------------------------------------
As noted in the May 18, 2022 SSSR, Finch controls NOX
emissions from the site through the following means:
Eliminated use of Boiler No. 1; Completed in 2015.
A time-phased elimination of No. 6 fuel oil on all boilers
since NOX emissions are higher from the combustion of fuel
oil than natural gas; Completed on December 31, 2015.
Performance of boiler and combustion tune-ups consistent
with 40 CFR part 63 subpart DDDDD, the Boiler MACT Rule; Completed the
first tune-up in January 2016.
A ``seasonal'' NOX RACT emission limit for
Boilers No. 2 through No. 5 as follows:
[cir] From April 15 to October 15, a NOX emission limit
of 0.225 lbs NOX/MMBtu measured on a daily basis and
reported as a 30-day average; \82\
---------------------------------------------------------------------------
\82\ See docket document ``Finch Air Title V Permit.''
---------------------------------------------------------------------------
[cir] From October 16 to April 14, an operating limit .275 pounds
per million BTU on a 30-day average. The limit will not apply when the
recovery boiler is not burning liquor or No. 9 is considered down. On
those days the limit will be 0.378 pounds per million BTU on a 24-hour
block average.\83\
---------------------------------------------------------------------------
\83\ Id.
---------------------------------------------------------------------------
According to the 2011 NEI data, Finch emitted 1,828.7 tons of
NOX and 309.6 tons of SO2. Since then, Finch has
implemented emission controls, as detailed in section 10.6.3 of New
York's submittal, and consequently reduced its emissions. New York also
provided a supplement which lists the controls at Finch Paper for
SO2, PM, and NOX for the primary units at the
facility.\84\ In addition to the NOX controls listed above,
the facility controls SO2 with a wet scrubber, the use of
low-sulfur fuel, and packed bed tower, gas scrubber.\85\ As a result,
in 2020, Finch emitted 1,324.3 tons of NOX and 138.9 tons of
SO2.\86\
---------------------------------------------------------------------------
\84\ See docket document ``FLM List Facility Controls.''
\85\ See docket document ``Finch Air Title V permit.''
\86\ See docket document ``FLM List Recent Emissions.''
---------------------------------------------------------------------------
In the first planning period, NYSDEC determined that the existing
long wet kilns at Lafarge Building Materials Inc., were BART eligible.
In January 2010, Lafarge entered a Consent Decree with the EPA \87\
which contained a compliance schedule for the plant to either modernize
the existing plant, retrofit the existing kilns with controls, or
retire the kilns. Furthermore, Lafarge Building Materials underwent
major renovations since the emission data was collected for the
analysis, replacing its two wet process kilns with a dry process kiln.
A wet scrubber was installed to control SO2, as well as
mercury, and a SNCR was installed to control NOX from the
kiln system.\88\ With the controls started on May 16, 2017 for
SO2, mercury, and NOX, Lafarge now meets the NSPS
limits in 40 CFR part 60 subpart F. In section 10.6.3 of New York's
submittal, New York addresses each of the four-factors for the controls
that had been implemented at Lafarge after the 2011 emissions data was
collected.
---------------------------------------------------------------------------
\87\ On January 21, 2010, EPA announced that the U.S. filed
Clean Air Act settlements to reduce air emissions from container
glass and Portland cement plants throughout the country. (Case 3:10-
cv-000440JPG-CJP) This settlement includes Portland cement plants
owned by Lafarge Company, including one located at Ravena, NY that
has two wet kilns that New York has identified as BART-eligible.
\88\ See docket document ``FLM List Facility Controls.''
---------------------------------------------------------------------------
According to the 2011 NEI data, Lafarge Building Materials emitted
4,926.5 tons of NOX and 9,570 tons of SO2. Since
then, Lafarge has implemented SIP-approved emission controls, as
detailed in section 10.6.3 of New York's submittal, and consequently
reduced its emissions. New York also provided a supplement which lists
the controls at Lafarge for SO2, PM, and NOX for
the primary units at the facility.\89\ As a result, in 2020, Lafarge
emitted 558.6 tons of NOX and 58.7 tons of
SO2.\90\
---------------------------------------------------------------------------
\89\ See docket document ``FLM List Facility Controls.''
\90\ See docket document ``FLM List Recent Emissions.''
---------------------------------------------------------------------------
The EPA therefore proposes to find that New York reasonably
determined it has satisfied Ask 2. As explained above, we do not
necessarily agree that a 3.0 Mm-1 threshold for selecting
sources for four-factor analysis results in a set of sources the
evaluation of which has the potential to meaningfully reduce the
State's contribution to visibility impairment. MANE-VU's threshold
identified only two sources in New York for four-factor analysis.
However, in this particular case we propose to find that New York's
additional information and explanation indicates that the State in fact
examined a reasonable set of sources and reasonably concluded that
four-factor analyses for these sources are not necessary because the
outcome would be that no further emission reductions would be
reasonable. EPA is basing this proposed finding on the State's
examination of the two sources, the current emissions from and controls
that apply to the facilities, controls in place at sources flagged by
the FLMs, as well as New York's existing SIP-approved rules that
control NOX emissions.
Ask 3, which addresses the sulfur content of heating oil used in
MANE-VU states, is based on a four-factor analysis that MANE-VU
conducted regarding the heating oil sulfur reduction regulations
contained in that Ask; specifically, for the control strategy of
reducing the sulfur content of distillate oil to 15 ppm. The analysis
started with an assessment of the costs of retrofitting refineries to
produce 15 ppm heating oil in sufficient quantities to support
implementation of the standard, as well as the impacts of requiring a
reduction in sulfur content on consumer prices. The analysis noted
that, as a result of previous EPA rulemakings to reduce the sulfur
content of on-road and non-road-fuels to 15 ppm, technologies are
currently available to achieve sulfur reductions and many refiners are
already meeting this standard, meaning that the capital investments for
further reductions in the sulfur content of heating oil are expected to
be relatively low compared to costs incurred in the past. The analysis
also examined, by way of example, the impacts of New York's existing 15
ppm sulfur requirements on heating oil prices and concluded that the
cost associated with reducing sulfur
[[Page 20403]]
was relatively small in terms of the absolute price of heating oil
compared to the magnitude of volatility in crude oil prices. It also
noted that the slight price premium is compensated by cost savings due
to the benefits of lower-sulfur fuels in terms of equipment life and
maintenance and fuel stability. Consideration of the time necessary for
compliance with a 15 ppm sulfur standard was accomplished through a
discussion of the amount of time refiners had needed to comply with the
EPA's on-road and non-road fuel 15 ppm requirement, and the
implications existing refinery capacity and distribution infrastructure
may have for compliance times with a 15 ppm heating oil standard. The
analysis concluded that with phased-in timing for states that have not
yet adopted a 15 ppm heating oil standard, there ``appears to be
sufficient time to allow refiners to add any additional heating oil
capacity that may be required.'' \91\ The analysis further noted the
beneficial energy and non-air quality environmental impacts of a 15 ppm
sulfur heating oil requirement and that reducing sulfur content may
also have a salutary impact on the remaining useful life of residential
furnaces and boilers.\92\
---------------------------------------------------------------------------
\91\ Id. at 8-7.
\92\ Id. at 8-8.
---------------------------------------------------------------------------
The EPA proposes to find that New York reasonably relied on MANE-
VU's four-factor analysis for a low-sulfur fuel oil regulation, which
engaged with each of the factors and explained how the information
supported a conclusion that a 15 ppm-sulfur fuel oil standard for fuel
oils is reasonable. New York's SIP-approved ultra-low sulfur fuel oil
rule \93\ is consistent with Ask 3's sulfur content standards for the
three types of fuel oils (distillate oil, #4 residual oil, #6 residual
oil). EPA therefore proposes to find that New York reasonably
determined that it has satisfied Ask 3.
---------------------------------------------------------------------------
\93\ 6 NYCRR subpart 225-1: Fuel Composition and Use- Sulfur
Limitations was approved into New York's SIP by the EPA on August
23, 2018. (83 FR 42589)
---------------------------------------------------------------------------
New York concluded that no additional updates were needed to meet
Ask 4, which requests MANE-VU states to pursue updating permits,
enforceable agreements, and/or rules to lock-in lower emission rates
for sources larger than 250 MMBtu per hour that have switched to lower
emitting fuels. As previously explained, New York updates permits for
large point sources every five years for Title V facilities, every ten
years for Air State Facilities, and when Title V and Air State
facilities make a major update. Under section 10.6.5. of its
submission, New York indicated it would require the use of lower
emitting fuel in such permits as they are updated. New York has also
adopted NYCRR Part 251 which requires all power plants in New York to
meet new emission limits for carbon dioxide.\94\ This regulation, in
addition to the SIP enforced NOX limits in 6 NYCRR subpart
227-2, Reasonably Available Control Technology (RACT) for Major
Facilities of Oxides of Nitrogen (NOX), satisfy Ask 4. Thus,
the EPA proposes to find that New York reasonably determined it has
satisfied Ask 4.
---------------------------------------------------------------------------
\94\ See section 10.6.5 of the NY RH 2nd Implementation Period
SIP submission.
---------------------------------------------------------------------------
Ask 5 addresses NOX emissions from peaking combustion
turbines that have the potential to operate on high electric demand
days. New York explains that it adopted NYCRR subpart 227-3, ``Ozone
Season Oxides of Nitrogen (NOX) Emission Limits for Simple
Cycle and Regenerative Combustion Turbines,'' on December 11, 2019 that
limits emissions from peaking combustion turbines \95\ that operate on
high electric demand days \96\ and meets the emission rates contained
in Ask 5. New York submitted Part 227-3 to the EPA on May 18, 2020 and
it was approved on August 11, 2021. (86 FR 43956) The EPA therefore
proposes to find that New York reasonably concluded that its existing
regulations comply with Ask 5.
---------------------------------------------------------------------------
\95\ Peaking combustion turbine is defined for the purpose of
this Ask as a turbine capable of generating 15 megawatts or more,
that commenced operation prior to May 1, 2007, is used to generate
electricity all or part of which is delivered to electric power
distribution grid for commercial sale and that operated less than or
equal to an average of 1,752 hours (or 20%) per year during 2014 to
2016.
\96\ High electric demand days are days when higher than usual
electrical demands bring additional generation units online, many of
which are infrequently operated and may have significantly higher
emissions rates of the generation fleet.
---------------------------------------------------------------------------
Finally, the EPA is proposing to find that New York has satisfied
Ask 6's request to consider and report in its SIP measures or programs
related to energy efficiency, cogeneration, and other clean distributed
generation technologies. New York reports it is a leader in adopting
energy efficiency and renewable energy programs and is always
investigating additional programs that will decrease use of fossil
fuels in energy generation. In the additional measures section of its
submittal, section 10.3.7, New York explains that in July 2019, it
passed the Climate Leadership and Community Protection Act (CLCPA). The
CLCPA requires New York to achieve a carbon free electric system by
2040 and reduce greenhouse gas emissions 85% below 1990 levels by 2050,
to expedite the transition to a clean energy economy. This law will
drive investment in clean energy solutions such as wind, solar, energy
efficiency and energy storage. The CLCPA targets investments to benefit
disadvantaged communities, create tens of thousands of new jobs,
improve public health and quality of life, and provide all New Yorkers
with more robust clean energy choices. Additionally, with a focus on
environmental justice, state agencies will invest at least 35% of clean
energy program resources to benefit disadvantaged communities but will
aim for a 40% investment. In addition, NYSDEC will, through the future
adoption of regulations, drive an 85% reduction in greenhouse gas
emissions by 2050, with an interim benchmark of 40% reduction in
emissions by 2030 (both relative to 1990 levels). The Climate Action
Council will develop a plan to offset remaining emissions through
carbon capture or other technologies to create a carbon-neutral
economy. Finally, a just transition working group will work to ensure
that individuals working in conventional energy industries are provided
with training and opportunities in the growing clean energy economy.
In sum, the EPA is proposing to find that, based on New York's
participation in the MANE-VU planning process, how it has addressed
each of the Asks, its initial submission and supplemental information
regarding sources and emissions, and the EPA's assessment of New York's
emissions and point sources, New York has complied with the
requirements of 40 CFR 51.308(f)(2)(i). Specifically, MANE-VU Asks 2
and 3 engage with the requirement that states evaluate and determine
that emission reduction measures that are necessary to make reasonable
progress by considering the four statutory factors. MANE-VU selected
two sources for New York to perform source-specific four-factor
analyses pursuant to Ask 2. EPA is proposing to find that the state's
approach is reasonable because the sources with the greatest modeled
impacts on visibility have reduced their emissions or are subject to
stringent control measures. New York's SIP-approved control measures,
emissions inventory and supplemental information demonstrate that the
sources of SO2 and NOX within the State that
would be expected to contribute to visibility impartment have small
emissions of NOX and SO2, are well controlled, or
both. New York's SIP-approved sulfur limitations and use regulation
limit the sulfur content of
[[Page 20404]]
distillate oil, residual oil, and coal fired in stationary sources. New
York's SIP-approved NOX RACT regulations include stringent
limits on boilers serving EGUs, stationary combustion turbines, ICI
boilers and high electric demand day units. In addition, New York
reviewed the source list provided by the FLMs and evaluated the
controls and emissions at each of the facilities. Therefore, it is
reasonable to assume that selecting additional point sources for four-
factor analysis would not have resulted in additional emission
reduction measures being determined to be necessary to make reasonable
progress for the second implementation period.
Moreover, MANE-VU conducted a four-factor analysis to support Ask
3, which requests that states pursue ultra-low sulfur fuel oil
standards to address SO2 emissions. New York has done so and
included its regulations in its SIP, thus satisfying the requirements
that states determine the emission reduction measures that are
necessary to make reasonable progress by considering the four factors,
and that their long-term strategies include the enforceable emission
limitations, compliance schedules, and other measures necessary to make
reasonable progress. To the extent that MANE-VU and New York regard the
measures in Asks 1 and 4 through 6 as being part of the region's
strategy for making reasonable progress, we propose to find it
reasonable for New York to address these Asks by pointing to existing
measures that satisfy each.
c. Additional Long-Term Strategy Requirements
The consultation requirements of 40 CFR 51.308(f)(2)(ii) provides
that states must consult with other states that are reasonably
anticipated to contribute to visibility impairment in a Class I area to
develop coordinated emission management strategies containing the
emission reductions measures that are necessary to make reasonable
progress. Section 51.308(f)(2)(ii)(A) and (B) require states to
consider the emission reduction measures identified by other states as
necessary for reasonable progress and to include agreed upon measures
in their SIPs, respectively. Section 51.308(f)(2)(ii)(C) speaks to what
happens if states cannot agree on what measures are necessary to make
reasonable progress.
New York participated in and provided documentation of the MANE-VU
intra- and inter-RPO consultation processes and addressed the MANE-VU
Asks by providing information on the measures it has in place that
satisfy each Ask.\97\ MANE-VU also documented disagreements that
occurred during consultation. MANE-VU noted in their Consultation
Report that upwind states expressed concern regarding the analyses the
RPO utilized for the selection of states for the consultation. MANE-VU
agreed that these tools, as all models, have their limitations, but
nonetheless deemed them appropriate. Additionally, there were several
comments regarding the choice of the 2011 modeling base year. MANE-VU
agreed that the choice of base year is critical to the outcome of the
study. MANE-VU acknowledged that there were newer versions of the
emission inventories and the need to use the best available inventory
for each analysis. However, MANE-VU disagreed that the choice of these
inventories was not appropriate for the analysis. Upwind states also
suggested that MANE-VU states adopt the 2021 timeline for regional haze
SIP submissions for the second planning period. MANE-VU agreed with the
reasons the comments provided, such as collaboration with data and
planning efforts. However, MANE-VU disagreed that the 2018 timeline
would prohibit collaboration. Additionally, upwind states noted that
they would not be able to address the MANE-VU Asks until they finalize
their SIPs. MANE-VU believed the assumption of the implementation of
the Asks from upwind states in its 2028 control case modeling was
reasonable.
---------------------------------------------------------------------------
\97\ See appendix E ``MANE-VU Regional Haze Consultation
Report.''
---------------------------------------------------------------------------
In sum, New York participated in the MANE-VU intra- and inter-RPO
consultation and satisfied the MANE-VU Asks, satisfying 40 CFR
51.308(f)(2)(ii)(A) and (B). New York satisfied 40 CFR
51.308(f)(2)(ii)(C) by participating in MANE-VU's consultation process,
which documented the disagreements between the upwind states and MANE-
VU and explained MANE-VU's reasoning on each of the disputed issues.
Thus, the EPA proposes that New York has satisfied the requirements of
40 CFR 51.308(f)(2)(ii).\98\
---------------------------------------------------------------------------
\98\ New York referenced the ``MANE-VU Regional Haze
Consultation Plan (5/5/2017)'' and provided documentation of the
MANE-VU consultation process in appendix E, ``MANE-VU Regional Haze
Consultation Report (7/27/2018)'' of its Regional Haze SIP
submission.
---------------------------------------------------------------------------
The documentation requirement of 40 CFR 51.308(f)(2)(iii) provides
that states may meet their obligations to document the technical bases
on which they are relying to determine the emission reductions measures
that are necessary to make reasonable progress through an RPO, as long
as the process has been ``approved by all State participants.'' As
explained above, New York chose to rely on MANE-VU's technical
information, modeling, and analysis to support development of its long-
term strategy. The MANE-VU technical analyses on which New York relied
are listed in the State's SIP submission and include source
contribution assessments, information on each of the four factors and
visibility modeling information for certain EGUs, and evaluations of
emission reduction strategies for specific source categories. We
propose to find that New York's participation in and reliance on the
documentation developed by MANE-VU in support of its process and
technical analyses to identify visibility-impairing pollutants and
sources and to form the basis of its long-term strategy (the Asks)
satisfies the requirements of 40 CFR 51.308(f)(2)(iii).
Section 51.308(f)(2)(iii) also requires that the emissions
information considered to determine the measures that are necessary to
make reasonable progress include information on emissions for the most
recent year for which the state has submitted triennial emissions data
to the EPA (or a more recent year), with a 12-month exemption period
for newly submitted data. New York's submission includes emissions
inventory data from 2014.\99\ New York later provided a supplement
including 2017 emission inventory data,\100\ which was the most recent
year of data that New York had submitted to the EPA to meet the
triennial reporting requirement within 12 months prior to New York's
submittal in March 2020. New York's supplement updated the tables and
graphs in the submission with the addition of the 2017 data. The EPA
proposes to find that New York has satisfied the emission inventory
requirement in 40 CFR 51.308(f)(2)(iii).
---------------------------------------------------------------------------
\99\ See section 10.2.3 of the NY RH 2nd Implementation Period
SIP submission.
\100\ See docket document ``NY Regional Haze Inventory
Supplement.''
---------------------------------------------------------------------------
The EPA also proposes to find that New York considered the five
additional factors in 40 CFR 51.308(f)(2)(iv) in developing its long-
term strategy. Pursuant to 40 CFR 51.308(f)(2)(iv)(A), New York noted
that ongoing Federal emission control programs that contribute to
emission reductions through 2028, including Cross-State Air Pollution
Rule (CSAPR), Boiler Maximum Achievable Control Technology (MACT)
Rules, Reciprocating Internal Combustion Engine (RICE) MACT Standards,
Consent Decrees, and portable fuel container rules, would impact
emissions
[[Page 20405]]
of visibility impairing pollutants from point and nonpoint sources in
the second implementation period. For non-road sources, New York
identified Clean Air Nonroad Diesel Final Rule-Tier 4, Control of
Emissions from Nonroad Large Spark-Ignition Engines and Recreational
Engines (Marine and Land-Based), and Small Engine Spark Ignition
(``Bond'') Rule. New York identified Heavy Duty Diesel (207) Engine
Standard, Tier 3 Motor Vehicle Standards, and Light Duty Vehicle GHG
Rule for Model-Year 2017-2025 as on-road source controls. On-going
measures from various source categories that New York considered in
developing its long-term strategy were discussed in section 10.3.6 of
their submission. Some of the SIP-approved state measures that New York
---------------------------------------------------------------------------
describes are:
Part 212: General Process Emission Sources
Part 215: Open Burning
Part 217: Motor Vehicle Emissions
Part 219: Incinerators
Part 220: Portland Cement Plants and Glass Plants
Part 222: Distributed Generation Sources.
Part 225: Fuel Composition and Use
Part 227: Stationary Combustion Installations
Part 231: New Source Review for New and Modified Facilities
Part 243: CSAPR NOX Ozone Season Group 2 Trading
Program
Part 244: CSAPR NOX Annual Trading Program
Part 245: CSAPR SO2 Group 1 Trading Program
Part 249: Best Available Retrofit Technology
NYSDEC provided a supplement that organizes these SIP-approved
state measures by the first and second regional haze implementation
periods. NYSDEC clarified that ``regulations adopted during the first
implementation period are considered existing measures and are still
necessary for `reasonable further progress' while regulations adapted
during the second implementation period are considered part of New
York's long-term strategy.'' \101\
---------------------------------------------------------------------------
\101\ See docket document ``NY State Measures Supplement.''
---------------------------------------------------------------------------
New York's consideration of measures to mitigate the impacts of
construction activities as required by 40 CFR 51.308(f)(2)(iv)(B)
includes discussion of a report that found that, from a regional haze
perspective, crustal material from anthropogenic sources does not play
a major role in visibility impairment at MANE-VU Class I areas.\102\
While construction activities can be responsible for direct PM
emissions in the region, the dust settles out of the air relatively
close to the sources and does not significantly impact visibility at
distant Class I areas. New York cited section 107-11: Air Quality
Protection of NYSDOT's Standard Specifications which requires
contractors to apply protective measures to prevent dust from being
released from construction sites. A summary of the PM emission
inventory in New York can be found in section IV.H. of this
rulemaking.\103\
---------------------------------------------------------------------------
\102\ See section 10.7.1 of the NY RH 2nd Implementation Period
SIP submission.
\103\ Section 7.1.2 of the NY RH 2nd Implementation Period SIP
submission addresses the PM10 inventory for NY.
---------------------------------------------------------------------------
Source retirements and replacement schedules are addressed pursuant
to 40 CFR 51.308(f)(2)(iv)(C) in section 10.3.8 of New York's
submission. Source retirements and replacements were considered in
developing the 2028 emission projections, with on the books/on the way
retirements and replacement included in the 2028 projections. That
said, New York's submittal indicated that shutdowns of large EGUs or
industrial sources within the state were scheduled to occur. The units
Indian Point 2 and Indian Point 3, located at Entergy Nuclear Power
Marketing, had deactivation dates of April 30, 2020 and April 30, 2021,
respectively. Greenpoint GT 1 unit, located at Hawkeye Energy Greenport
LLC had a deactivation date of June 6, 2018. Finally, the units Selkirk
1 and Selkirk 2, located at Selkirk Cogen Partners, LP had a
deactivation date of May 17, 2018.\104\ New York confirmed that the
deactivations of Indian Point 2 and Indian Point 3 occurred as
scheduled on April 30, 2020 and April 30, 2021, respectively,\105\ and
advised that the deactivation requests for the Greenpoint GT1, Selkirk
1, and Selkirk 2 units were withdrawn and the units continue to
operate.\106\
---------------------------------------------------------------------------
\104\ Refer to Section 10.3.8 of NY's submittal (as included
above).
\105\ Confirmation for the retirement of Indian Point 2 on April
30, 2020 can be found in the Notes for Table III-2 on page 99 of the
New York System Independent System Operators 2021 Load and Capacity
Report (Gold Book).
See https://www.nyiso.com/documents/20142/2226333/2021-Gold-Book-Final-Public.pdf/b08606d7-db88-c04b-b260-ab35c300ed64.
Confirmation for the retirement of Indian Point 3 on April 30, 2021
can be found in the Notes for Table III-2 on page 99 of the New York
System Independent System Operators 2022 Load and Capacity Report
(Gold Book). See https://www.nyiso.com/documents/20142/2226333/2022-Gold-Book-Final-Public.pdf/cd2fb218-fd1e-8428-7f19-df3e0cf4df3e.
\106\ Confirmation for the withdrawal of the deactivation
requests and continued operation for the Selkirk and Hawkeye units
can be found on page 88 and page 95 (respectively) of the New York
System Independent System Operators 2023 Load and Capacity Report
(Gold Book). See https://www.nyiso.com/documents/20142/2226333/2023-Gold-Book-Public.pdf/c079fc6b-514f-b28d-60e2-256546600214.
---------------------------------------------------------------------------
In considering smoke management as required in 40 CFR
51.308(f)(2)(iv)(D), New York stated that prescribed fires have not
been shown to significantly contribute to visibility impairment in
mandatory Class I areas.\107\ New York cited 6 NYCRR Part 194, Forest
Practices, its regulation for prescribed burns that considers the
possible impacts in mandatory Class I Federal areas. New York reported
that there was a total of 12 prescribed fires in 2016 and a total of 11
prescribed fires in 2015 that were conducted by NYSDEC on public
land.\108\ A strengthened ban on open burning, 6 NYCRR Part 215, has
also helped reduce forest fires. Additionally, New York has a program
in which owners/managers must get prior authorization and a permit
before implementing fire plans that require an approved burn plan be in
place.
---------------------------------------------------------------------------
\107\ See section 10.7.2 of the NY RH 2nd Implementation Period
SIP submission.
\108\ Id.
---------------------------------------------------------------------------
New York considered the anticipated net effect of projected changes
in emissions as required by 40 CFR 51.308(f)(2)(iv)(E) by discussing,
in section 10.8 of its submission, the photochemical modeling for the
2018-2028 period it conducted in collaboration with MANE-VU. The two
modeling cases that were run were a 2028 base case, which considered
only the on-the books controls, and a 2028 control case that considered
implementation of the MANE-VU Ask. In response to this modeling, New
York stated that the emission reductions will allow the visibility in
mandatory class one areas to meet the RPGs through 2028, which is on
pace for the 2064 natural visibility benchmark. Figures 9-2 through 9-8
of New York's submission illustrate the predicted visibility
improvements by 2028 resulting from the implementation of the Mane-VU
regional long-term strategy by New York and others.
Because New York has considered each of the five additional factors
and either discussed the measures it has in place to address a factor
or explained how a factor informed MANE-VU's technical analysis for
second implementation period planning for reasonable progress, the EPA
proposes to find that New York has satisfied the requirements of 40 CFR
51.308(f)(2)(iv).
[[Page 20406]]
F. Reasonable Progress Goals
Section 51.308(f)(3) contains the requirements pertaining to RPGs
for each Class I area. Section 51.308(f)(3)(i) requires a state in
which a Class I area is located to establish RPGs--one each for the
most impaired and clearest days--reflecting the visibility conditions
that will be achieved at the end of the implementation period as a
result of the emission limitations, compliance schedules and other
measures required under paragraph (f)(2) to be in states' long-term
strategies, as well as implementation of other CAA requirements. The
long-term strategies as reflected by the RPGs must provide for an
improvement in visibility on the most impaired days relative to the
baseline period and ensure no degradation on the clearest days relative
to the baseline period. Section 51.308(f)(3)(ii) applies in
circumstances in which a Class I area's RPG for the most impaired days
represents a slower rate of visibility improvement than the uniform
rate of progress calculated under 40 CFR 51.308(f)(1)(vi). Under 40 CFR
51.308(f)(3)(ii)(A), if the state in which a mandatory Class I area is
located establishes an RPG for the most impaired days that provides for
a slower rate of visibility improvement than the URP, the state must
demonstrate that there are no additional emission reduction measures
for anthropogenic sources or groups of sources in the state that would
be reasonable to include in its long-term strategy. Section
51.308(f)(3)(ii)(A) does not apply to New York, as it does not have a
Class I area, so New York is not required to establish RPGs. Section
51.308(f)(3)(ii)(B), however, requires that if a state contains sources
that are reasonably anticipated to contribute to visibility impairment
in a Class I area in another state, and the RPG for the most impaired
days in that Class I areas is above the URP, the upwind state must
provide the same demonstration. New York's SIP revision included the
modeled MANE-VU 2028 visibility projections at nearby Class I
areas.\109\ While these projections may not represent the final RPGs
for these Class I areas, all of the 2028 projections for the most
impaired days at these areas (Acadia, Brigantine, Great Gulf, Lye
Brook, Moosehorn, Dolly Sods and Shenandoah) are well below the
respective 2028 glidepaths. In addition, we note that New York's
largest contribution is to Lye Brook Wilderness, in Vermont.
---------------------------------------------------------------------------
\109\ Section 9.11 of the NY RH 2nd Implementation Period SIP
submission.
---------------------------------------------------------------------------
The EPA proposes to determine that New York has satisfied the
applicable requirements of 40 CFR 51.308(f)(3) relating to reasonable
progress goals.
G. Monitoring Strategy and Other Implementation Plan Requirements
Section 51.308(f)(6) specifies that each comprehensive revision of
a state's regional haze SIP must contain or provide for certain
elements, including monitoring strategies, emissions inventories, and
any reporting, recordkeeping and other measures needed to assess and
report on visibility. A main requirement of this subsection is for
states with Class I areas to submit monitoring strategies for
measuring, characterizing, and reporting on visibility impairment. New
York does not have a Class I area and therefore its SIP is not required
to provide for a monitoring strategy and associated requirements. It is
also not subject to the requirements of 40 CFR 51.308(f)(6)(i), (ii),
and (iv), which apply only to states with Class I areas and pertain to
the establishment of monitoring sites and reporting and use of
monitoring data. However, pursuant to 40 CFR 51.308(f)(6)(iii), New
York's SIP is required to provide for procedures by which monitoring
data and other information are used in determining the contribution to
emissions to visibility impairment in other states. MANE-VU and New
York accept the contribution assessment analysis, published by MANE-VU
on its website.\110\ The analysis included Eulerian (grid-based) source
models, Lagrangian (air parcel-based) source dispersion models, as well
as a variety of data analysis techniques that include source
apportionment models, back trajectory calculations, and the use of
monitoring and inventory data. New York State agrees that MANE-VU is
providing appropriate technical information by using the IMPROVE
program data.\111\ New York provides a description and location for the
IMPROVE monitors in the mandatory Class I Federal areas to which New
York contributes to regional haze.\112\
---------------------------------------------------------------------------
\110\ See appendix C of the NY RH 2nd Implementation Period SIP
submission, ``Selection of States for MANE-VU Regional Consultation
(2018).''
\111\ Section 6.2 of the NY RH 2nd Implementation Period SIP
submission.
\112\ Section 6.3 of the NY RH 2nd Implementation Period SIP
submission.
---------------------------------------------------------------------------
Therefore, the EPA is proposing to find that New York's SIP
provides for the necessary elements to satisfy the applicable
requirements in 40 CFR 51.308(f)(6)(iii) for states without Class I
areas.
Section 51.308(f)(6)(v) requires SIPs to provide for a statewide
inventory of emissions of pollutants that are reasonably anticipated to
cause or contribute to visibility impairment, including emissions for
the most recent year for which data are available and estimates of
future projected emissions. It also requires a commitment to update the
inventory periodically. New York provides for emissions inventories and
estimates for future projected emissions by participating in the MANE-
VU RPO and complying with EPA's Air Emissions Reporting Rule (AERR). In
40 CFR part 51, subpart A, the AERR requires states to submit updated
emissions inventories for criteria pollutants to EPA's Emissions
Inventory System (EIS) every three years. The emission inventory data
is used to develop the National Emissions Inventory (NEI), which
provides for, among other things, a triennial state-wide inventory of
pollutants that are reasonably anticipated to cause or contribute to
visibility impairment.
Section 7.1 of New York's second implementation period regional
haze SIP submission includes tables of NEI data. The source categories
of the emissions inventories included are: (1) Point sources, (2)
nonpoint sources, (3) non-road mobile sources, and (4) on-road mobile
sources. The point source category is further divided into Air Markets
Program Data (AMPD) point sources and non-AMPD point sources.\113\ New
York included NEI emissions inventories for 2002 (one of the regional
haze program baseline years), 2008, and 2014 for the following
pollutants SO2, NOX, PM10,
PM2.5, VOCs, CO and NH3; data from New York's
2011 base year emission inventory was also included for the above
referenced pollutants. New York also provided a summary of
SO2 and NOX emissions for AMPD sources for the
years of 2016 and 2017.\114\ New York's SIP revision was submitted in
March 2020; therefore, the year of the most recent NEI at the time of
submission to the EPA was 2017. Since only 2014 NEI data was included,
NYSDEC provided a supplement that updated the emission inventory table
and graphs with the 2017 NEI data.\115\
---------------------------------------------------------------------------
\113\ AMPD sources are facilities that participate in EPA's
emission trading programs. The majority of AMPD sources are electric
generating units (EGUs).
\114\ Table 7-2 and 7-14 of the NY RH 2nd Implementation Period
SIP submission.
\115\ See docket document ``NY Regional Haze Inventory
Supplement.''
---------------------------------------------------------------------------
Section 51.308(f)(6)(v) also requires states to include estimates
of future projected emissions and include a commitment to update the
inventory
[[Page 20407]]
periodically. New York relied on the MANE-VU projected emissions to
2028, which is the end of the second implementation period.\116\ MANE-
VU completed two 2028 projected emissions modeling cases--a 2028 base
case that considers only on-the-books controls and a 2028 control case
that considers implementation of the MANE-VU Asks.\117\
---------------------------------------------------------------------------
\116\ See section 7.2 of the NY RH 2nd Implementation Period SIP
submission.
\117\ See appendix D ``Technical Support Document for the 2011
Northeastern U.S. Gamma Emission Inventory (January 2018)'' and
``Ozone Transport Commission/Mid-Atlantic Northeastern Visibility
Union 2011 Based Modeling Platform Support Document--October 2018
Update (October 2018)'' in the SIP submission.
---------------------------------------------------------------------------
The EPA proposes to find that New York has met the requirements of
51.308(f)(6)(v) by its continued participation in MANE-VU and on-going
compliance with the AERR, and that no further elements are necessary at
this time for New York to assess and report on visibility pursuant to
40 CFR 51.308(f)(6)(vi).
H. Requirements for Periodic Reports Describing Progress Towards the
Reasonable Progress Goals
Section 51.308(f)(5) requires that periodic comprehensive revisions
of states' regional haze plans also address the progress report
requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these
requirements is to evaluate progress towards the applicable RPG for
each Class I area within the state and each Class I area outside the
state that may be affected by emissions from within that state. Section
51.308(g)(1) and (2) apply to all states and require a description of
the status of implementation of all measures included in a state's
first implementation period regional haze plan and a summary of the
emission reductions achieved through implementation of those measures.
Section 51.308(g)(3) applies only to states with Class I areas within
their borders and requires such states to assess current visibility
conditions, changes in visibility relative to baseline (2000-2004)
visibility conditions, and changes in visibility conditions relative to
the period addressed in the first implementation period progress
report. Section 51.308(g)(4) applies to all states and requires an
analysis tracking changes in emissions of pollutants contributing to
visibility impairment from all sources and sectors since the period
addressed by the first implementation period progress report. This
provision further specifies the year or years through which the
analysis must extend depending on the type of source and the platform
through which its emission information is reported. Finally, 40 CFR
51.308(g)(5), which also applies to all states, requires an assessment
of any significant changes in anthropogenic emissions within or outside
the state have occurred since the period addressed by the first
implementation period progress report, including whether such changes
were anticipated and whether they have limited or impeded expected
progress towards reducing emissions and improving visibility.
New York's submission describes the status of the measures of the
long-term strategy from the first implementation period. As a member of
MANE-VU, New York considered the MANE-VU Asks and adopted corresponding
measures into its long-term strategy for the first implementation
period. The MANE-VU Asks were: (1) Timely implementation of Best
Available Retrofit Technology (BART) requirements; (2) EGU controls
including Controls at 167 Key Sources that most affect MANE-VU Class I
areas; (3) Low sulfur fuel oil strategy; and (4) Continued evaluation
of other control measures.
New York did have sources identified on the list of 167 EGUs within
its borders and provided a list of the sources subject to BART controls
and provided a summary of the control requirements for the subject
emission units at each facility.\118\ Emission limits or alternate
compliance methods (i.e., shutdowns and capping provisions) for these
facilities were approved as SIP revisions by EPA (77 FR 51915, August
28, 2012), except for the Roseton and Danskammer Generating Stations.
EPA issued FIP limits for the BART-eligible sources at these
facilities, which were later adopted into the respective Title V
permits and resubmitted as SIP revisions. Danskammer's BART measures
were approved as SIP revisions, effective January 3, 2018 (82 FR 57126,
December 4, 2017), and Roseton's BART measures received approval
effective March 18, 2018 (83 FR 6970, February 16, 2018).
---------------------------------------------------------------------------
\118\ Table 8-1 of the NY RH 2nd Implementation Period SIP
submission.
---------------------------------------------------------------------------
Lastly, in response to a MANE-VU Ask, in 2015 New York promulgated
a rule to reduce the sulfur content in commercial heating oil and to
prohibit the use of heavy heating oils that contain high levels of
sulfur. The EPA approved this rule into the SIP. (83 FR 42589, August
28, 2018). In section 7.1.4 of New York's submission, New York explains
that the SO2 decreases are attributed to the low sulfur fuel
strategy and to the 90% or greater reductions in SO2
emissions from the 167 EGU stacks (both inside and outside of MANE-VU),
as requested in the MANE-VU ``Ask'' for the states within MANE-VU for
the first regional haze planning period. Since some components of the
MANE-VU low sulfur fuel strategy have milestones of 2016 and 2018, and
as MANE-VU states continue to adopt rules to implement the strategy,
additional SO2 emissions reductions have likely been
obtained since 2017 and are expected to continue into the future.
The EPA proposes to find that New York has met the requirements of
51.308(g)(1) and (2) because its SIP submission describes the measures
included in the long-term strategy from the first implementation
period, as well as the status of their implementation and the emission
reductions achieved through such implementation.
Section 51.308(g)(3) requires states with Class I areas to report
on the visibility conditions and changes at those areas. New York does
not have any Class I areas and is not required to address this
provision.
Pursuant to 40 CFR 51.308(g)(4), New York provided a summary of
emissions of SO2, NOX, PM10,
PM2.5, VOCs, and NH3 from all sources and
activities, including from point, nonpoint, non-road mobile, and on-
road mobile sources, for the time period from 2002 to 2017. New York
explained that 2014 was the most recent year for which it had submitted
emission estimates to fulfill the requirements of part 51 subpart A
(the AERR), however since their submission was not until 2020, New York
later provided a supplement that included the 2017 data.\119\
---------------------------------------------------------------------------
\119\ See docket document ``NY Regional Haze Inventory
Supplement.''
---------------------------------------------------------------------------
The emissions information submitted by New York indicates that
SO2 emissions decreased over the 2002 through 2017 period.
SO2 emissions from AMPD sources in New York have declined
from 2002 to 2017. Also, SO2 emissions from non-AMPD point
sources and nonpoint, non-road, and on-road sources all declined from
2002 to 2017, although not all categories have shown a consistent
decrease.\120\ SO2 decreases can be attributed to the low
sulfur fuel strategy and the 90% or greater reduction in SO2
emissions at the EGU stacks identified in the MANE-VU ``Ask'' for
states within MANE-VU for the first regional haze planning
[[Page 20408]]
period. Other SO2 emission decreases are due to source
shutdowns and fuel switching.\121\
---------------------------------------------------------------------------
\120\ See section 7.1.4 of the NY RH 2nd Implementation Period
SIP submission and ``NY Regional Haze Inventory Supplement.''
\121\ See page 7-25 of the NY RH 2nd Implementation Period SIP
submission.
---------------------------------------------------------------------------
Total NOX emissions have also declined from 2002 to
2017, although not all categories have shown a consistent decrease.
NOX emissions from AMPD, non-road, and on-road sources in
New York have declined from 2002 to 2017. New York explains that
nonpoint emissions of NOX have been variable from 2002 to
2014 due to year variation, as well as changes to the tools used to
estimate nonpoint emissions. New York asserts that reductions in
NOX emissions from AMPD sources are due to EGU retirements
and Federal regional allowance trading programs, while reductions in
non-road and on-road NOX are due to a range of Federal
requirements for different types of engines and fuels.\122\
---------------------------------------------------------------------------
\122\ See section 7.1.1 of the NY RH 2nd Implementation Period
SIP submission.
---------------------------------------------------------------------------
Emissions of PM10 decreased overall from 2002 to 2017.
New York explains that changes in PM10 emissions from 2002
to 2008 and 2011 to 2014 are likely due to changes to the methods used
for estimating residential wood combustion emissions.\123\
---------------------------------------------------------------------------
\123\ See section 7.1.2 of the NY RH 2nd Implementation Period
SIP submission.
---------------------------------------------------------------------------
Similarly, NH3 emissions in New York were lower overall
in 2017 relative to 2002, although emissions from nonpoint sources do
show an increase from 2014 to 2017.\124\ New York notes that it
believes there was no significant change in nonpoint ammonia emissions
from 2014-2017; the State attributes the disparity to changes in EPA
modeling and methodology.\125\
---------------------------------------------------------------------------
\124\ See docket document ``NY Regional Haze Inventory
Supplement.''
\125\ Id.
---------------------------------------------------------------------------
Total PM2.5 emissions in New York have remained constant
from 2002-2014, with 2008 being an outlier. Similar to PM10,
New York explains that some of increases or declines in
PM2.5 could be due to changes in estimation methodologies
for categories such as yard waste burning, paved and unpaved road dust,
and residential wood combustion.\126\ There was a reduction in total
PM2.5 emission from 2014 to 2017.\127\
---------------------------------------------------------------------------
\126\ See section 7.1.3 of the NY RH 2nd Implementation Period
SIP submission.
\127\ See docket document ``NY Regional Haze Inventory
Supplement.''
---------------------------------------------------------------------------
In New York, the total VOC emissions have generally declined over
the 2002 to 2014 period; emissions from nonpoint sources have increased
during this time causing an increase in the total VOC emissions in
2017. NYSDEC believes there was no significant change in emissions from
2014-2017, but rather attributes the disparity to changes in EPA
modeling and methodology.\128\ New York states that decreases in VOC
emissions can be attributed to Federal and state rules for evaporated
sources of VOC emissions.\129\
---------------------------------------------------------------------------
\128\ Id.
\129\ See section 7.1.5 of the NY RH 2nd Implementation Period
SIP submission.
---------------------------------------------------------------------------
The EPA is proposing to find that New York has satisfied the
requirements of 40 CFR 51.308(g)(4) by providing emissions information
for SO2, NOX, PM10, PM2.5,
VOCs, CO and NH3 broken down by type of source.
New York uses the emissions trend data in the SIP submission \130\
and the supplemental information \131\ to support the assessment that
anthropogenic haze-causing pollutant emissions in New York have
decreased during the reporting period and that changes in emissions
have not limited or impeded progress in reducing pollutant emissions
and improving visibility. In conclusion, the EPA is proposing to find
that New York has met the requirements of 40 CFR 51.308(g)(5).
---------------------------------------------------------------------------
\130\ See section 7 ``Emission Inventory'' of the NY RH 2nd
Implementation Period SIP submission.
\131\ See docket document ````NY Regional Haze Inventory
Supplement.''
---------------------------------------------------------------------------
I. Requirements for State and Federal Land Manager Coordination
Section 51.308(i)(2)'s FLM consultation provision requires a state
to provide FLMs with an opportunity for consultation that is early
enough in the state's policy analyses of its emission reduction
obligation so that information and recommendations provided by the FLMs
can meaningfully inform the state's decisions on its long-term
strategy. If the consultation has taken place at least 120 days before
a public hearing or public comment period, the opportunity for
consultation will be deemed early enough. Regardless, the opportunity
for consultation must be provided at least sixty days before a public
hearing or public comment period at the state level. Section
51.308(i)(2) also provides two substantive topics on which FLMs must be
provided an opportunity to discuss with states: assessment of
visibility impairment in any class I area and recommendations on the
development and implementation of strategies to address visibility
impairment. Section 51.308(i)(3) requires states, in developing their
implementation plans, to include a description of how they addressed
FLMs' comments.
The states in the MANE-VU RPO conducted FLM consultation early in
the planning process concurrent with the state-to-state consultation
that formed the basis of the RPO's decision making process. As part of
the consultation, the FLMs were given the opportunity to review and
comment on the technical documents developed by MANE-VU. The FLMs were
invited to attend the intra- and inter-RPO consultations calls among
states and at least one FLM representative was documented to have
attended seven intra-RPO meetings and all inter-RPO meetings. New York
participated in these consultation meetings and calls.\132\
---------------------------------------------------------------------------
\132\ See appendix E of the NY RH 2nd Implementation Period SIP
submission, ``MANE-VU Regional Haze Consultation Summary (MANE-VU,
July 2018).''
---------------------------------------------------------------------------
As part of this early engagement with the FLMs, in April 2018 the
NPS sent letters to the MANE-VU states requesting that they consider
specific individual sources in their long-term strategies. NPS used an
analysis of emissions divided by distance (Q/d) to estimate the impact
of MANE-VU facilities. To select the facilities, NPS first summed 2014
NEI NOX, PM10, SO2, and SO4
and divided by the distance to a specified NPS mandatory Class I
Federal area across all MANE-VU states relative to Acadia, Mammoth Cave
and Shenandoah National Parks, then ranked the Q/d values relative to
each Class I area, created a running total, and lastly identified those
facilities contributing to 80% of the total impact at each NPS Class I
area. NPS applied a similar process to facilities in Maine relative to
Acadia National Park. NPS merged the resulting lists of facilities and
sorted them by their states. NPS suggested that a state consider those
facilities comprising 80% of the Q/d total, not to exceed the 25 top
ranked facilities. The NPS identified 39 facilities in New York in this
letter.\133\ In a letter dated October 22, 2018, NPS identified 26
facilities for which more control information was desired. To address
the NPS's request for more information, section 10.4 of New York's
submission details the emission controls and updates to the 26
facilities that have occurred since the 2014 NEI. Table 10-4 in New
York's submission contains the 26 facilities that were identified by
the NPS. The U.S. Forest Service requested that New York consider
specific individual sources in its long-term strategy (LTS) and
identified three
[[Page 20409]]
facilities that New York should consider. To address the Forest
Service's request, more information was provided in section 10.5 of New
York's submission on the emission controls and updates the facilities
have undergone since 2011. New York provided a supplement that contains
emission data for the facilities identified by the FLMs.\134\ This
supplement provides emission data from 2018-2020 for the facilities
mentioned in section 10.4 and 10.5 of New York's submission. In
addition, New York provided a summary table of the controls at each of
the facilities identified by the FLMs for SO2, PM, and
NOX.\135\
---------------------------------------------------------------------------
\133\ See appendix E of the NY RH 2nd Implementation Period SIP
submission, ``MANE-VU Regional Haze Consultation Summary (MANE-VU,
July 2018).''
\134\ See docket document ``FLM List Recent Emissions.''
\135\ See docket document ``FLM List Facility Controls.''
---------------------------------------------------------------------------
On February 22, 2019, New York submitted a draft Regional Haze SIP
to the U.S. Forest Service, the U.S. Fish and Wildlife Service, and the
National Park Service for a 60-day review and comment period pursuant
to 40 CFR 51.308(i)(2).\136\ New York received comments from the Forest
Service on April 22, 2019, and from the National Park Service on May
11, 2019. The U.S. Fish and Wildlife Service indicated that they did
not have any comments on April 17, 2019. New York responded to the FLM
comments and included the responses in appendix A of its submission, in
accordance with 40 CFR 51.308(i)(3). On August 7, 2019, New York
published a Public Notice in the NYSDEC Environmental Notice Bulletin
(ENB) announcing that it planned to submit to EPA a Regional Haze SIP
revision and providing a 30-day period for the public to comment or to
request a hearing. On September 4, 2019, New York published a notice in
the ENB extending the period for the public to comment or request a
hearing to October 7, 2019. New York received and responded to public
comments and included both in their submission.
---------------------------------------------------------------------------
\136\ See appendix A of the NY RH 2nd Implementation Period SIP
submission, ``Summary and Response to Federal Land Manager
Comments.''
---------------------------------------------------------------------------
For the reasons stated above, the EPA proposes to find that New
York has met its requirements under 40 CFR 51.308(i) to consult with
the FLMs on its regional haze SIP for the second implementation period.
New York committed in its SIP to ongoing consultation with the FLMs on
regional haze issues throughout the implementation period, consistent
with the requirement of 40 CFR 51.308(i)(4).\137\
---------------------------------------------------------------------------
\137\ See section 4 of the NY RH 2nd Implementation Period SIP
submission.
---------------------------------------------------------------------------
V. Environmental Justice Considerations
New York provided information related to its environmental justice
(EJ) considerations as part of its SIP submission. This information
consisted of details on New York's Climate Leadership and Community
Protection Act (CLCPA), which expedites the transition to a clean
energy economy by requiring New York to achieve a carbon free
electricity system by 2040 and reduce greenhouse gas emissions 85%
below 1990 levels by 2050. New York explains that the CLCPA targets
investments to benefit disadvantaged communities, creates tens of
thousands of new jobs, and improves public health and quality of life
via more robust clean energy choices. The CLCPA also focuses on
environmental justice by requiring state agencies to invest at least
35% of clean energy program resources to benefit disadvantaged
communities. Through the adoption of these regulations, New York
intends to reduce greenhouse gas emissions 85% by 2050, with an interim
benchmark of 40% reduction in emissions by 2030 (both relative to 1990
levels). Additionally, through the CLCPA, New York intends to form a
transition working group to ensure that individuals working in
conventional energy industries are provided with training and
opportunities in the growing clean energy economy.
New York received several comments regarding its consideration of
EJ within its Regional Haze plan for the second implementation period.
In particular, New York was asked by several commentors to analyze the
EJ impacts to ensure the RH plan would reduce greenhouse gas emissions
where possible, to align with the CLCPA and minimize harms to
disproportionately impacted communities. One commentor stated EJ
impacts are the type of non-air quality impacts the New York should
consider when it sets RPGs for Class 1 areas and determines reasonable
progress measures for specific sources. Another commentor critiqued New
York for its lack of evaluation as to whether its reasonable progress
measures will affect disproportionately impacted communities and
suggested that incorporating EJ impacts into the RPG analysis would
maximize the environmental benefits of the regional haze program.
New York responded to these comments affirming that while the
Regional Haze Rule does not require states to address EJ or greenhouse
gas emissions reductions or impacts, and that New York is analyzing the
impact of state measures through other regulatory efforts and
initiatives it has adopted which will result in emission reductions in
EJ areas. New York also asserted that EJ would be further addressed
through programs such as the CLCPA, which has a large EJ component, and
welcomed the commentor to comment on such processes as they proceed.
That said, the EPA believes that this action is not likely to
result in any new disproportionate and adverse effects on communities
with EJ concerns. It is expected that the air quality improvements
associated with New York's regional haze plan will provide air quality
benefits across the state, and will not result in any new potentially
disproportionate and adverse effects within communities with EJ
concerns. However, since EJ concerns are more accurately captured when
evaluating relatively smaller areas or on a community level basis, the
EPA believes that it is not practicable to assess, via a comprehensive
EJ analysis, whether this proposed action would result in any new
disproportionate and adverse effects on communities with EJ concerns.
Furthermore, the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. In addition, there is no
information in the record indicating that this action is inconsistent
with the stated goal of E.O. 12898 and/or that this action is expected
to have disproportionately high or adverse human health or
environmental effects on a particular group of people.
In conclusion, the EPA expects that this proposed action will
generally be neutral or contribute to reduced environmental and health
impacts on all populations in New York, including people of color and
low-income populations. At a minimum, this action is not expected to
worsen any air quality and it is expected this action will ensure the
State is meeting requirements to attain and/or maintain air quality
standards. The EPA therefore concludes that this proposed rule will not
have or lead to disproportionately high or adverse human health or
environmental effects on communities with EJ concerns. New York
provided details on its CLCPA as part of its SIP submittal to
demonstrate the State's consideration of EJ even though the CAA and
applicable implementing regulations neither prohibit nor require an
evaluation. The EPA's evaluation of New York's EJ considerations is
described above. The analysis was done for the purpose of providing
additional context and information about this rulemaking to the public,
and not as a basis of the action.
[[Page 20410]]
The EPA is taking action under the CAA on bases independent of the
State's evaluation of EJ.
VI. The EPA's Proposed Action
The EPA is proposing to approve New York's May 12, 2020,
supplemented on February 16, 2022, SIP submission as satisfying the
regional haze requirements for the second implementation period
contained in 40 CFR 51.308(f).
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 proposing 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 EJ considerations by means of an
extensive and comprehensive EJ analysis as part of its SIP submittal;
the CAA and applicable implementing regulations neither prohibit nor
require such an evaluation. Nevertheless, NYSDEC did reference existing
EJ programs within its SIP submittal, as described above in section V,
``Environmental Justice Considerations.'' 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, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2024-06105 Filed 3-21-24; 8:45 am]
BILLING CODE P