[Federal Register Volume 90, Number 88 (Thursday, May 8, 2025)]
[Proposed Rules]
[Pages 19434-19437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-08077]
[[Page 19434]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2025-0040; FRL-12733-01-R2]
Approval and Promulgation of State Implementation Plans; New
York; Emission Statement Certification of the 2008 and 2015 Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of the comprehensive State Implementation Plan (SIP)
revisions submitted by New York that certify that the State has
satisfied the requirements for an emission statement program for both
the Serious and Moderate classifications of the 2008 and 2015 ozone
National Ambient Air Quality Standards (NAAQS), respectively. These
actions are being taken in accordance with the requirements of the
Clean Air Act (CAA or Act).
DATES: Written comments must be received on or before June 9, 2025.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2025-0040 at https://www.regulations.gov. Although listed in the
index, some information is not publicly available, e.g., Controlled
Unclassified Information (CUI) (formerly referred to as Confidential
Business Information (CBI)) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through https://www.regulations.gov. 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: Fausto Taveras, Environmental
Protection Agency, Air Programs Branch, Region 2, 290 Broadway, New
York, New York 10007-1866, telephone number: (212) 637-3378, email
address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
I. What did New York submit?
II. Background
A. Ozone Designations and Relevant SIP Submissions
B. Statutory and Regulatory Requirements for Emission Statements
III. Summary and Evaluation of New York's Emission Statement
Certifications
IV. The EPA's Proposed Action
V. Statutory and Executive Order Reviews
I. What did New York submit?
On January 29, 2021, New York submitted a SIP revision for purposes
of addressing ozone elements for the 2008 and 2015 ozone 8-hour NAAQS
for the New York portion of the New York-Northern New Jersey-Long
Island (NY-NJ-CT) nonattainment area (also referred to as the New York
Metro Area or NYMA). Within this comprehensive SIP, the State included
its certification that it has satisfied the requirements of an emission
statement program for the 2015 ozone Moderate classification, pursuant
to CAA section 182(a)(3)(B) and 182(b), for the NYMA nonattainment
area.
In addition, New York also submitted a comprehensive SIP revision
on November 29, 2021. Within that submittal, New York included its
certification that the State has satisfied the requirements of an
emission statement program for the 2008 ozone Serious classification,
pursuant to CAA section 182(a)(3)(B) and 182(c), for the NYMA
nonattainment area. The EPA addressed the remaining ozone elements,
outlined in New York's comprehensive January 29, 2021, and November 29,
2021, SIP revisions, in a separate rulemaking. 88 FR 77208 (November 9,
2023). Table 1 presents the Ozone SIP elements addressed in New York's
comprehensive January 29, 2021, and November 29, 2021, SIP submissions
along with the respective ozone NAAQS classification and nonattainment
areas.
Table 1--SIP Elements Addressed in New York's Comprehensive SIP Revision Submitted on January 29, 2021, and
November 29, 2021
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Ozone NAAQS and classification SIP element Nonattainment areas SIP submission date
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2008 Ozone NAAQS--Serious Certification of the New York's portion of the November 29, 2021.
Classification. State's Emission New York-Northern New
Statement Program Jersey-Long Island (NY-NJ-
pursuant to CAA section CT).
182(c).
2015 Ozone NAAQS--Moderate Certification of the New York's portion of the January 29, 2021.
Classification. State's Emission New York-Northern New
Statement Program Jersey-Long Island (NY-NJ-
pursuant to CAA section CT).
182(a)(3)(B) and 182(b).
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II. Background
A. Ozone Designations and Relevant SIP Submissions
In 2008, the EPA revised the health-based NAAQS for ozone, setting
it at 0.075 parts per million (ppm), or 75 parts per billion (ppb),
averaged over an 8-hour time frame. 73 FR 16436 (March 27, 2008). The
EPA determined that the revised 8-hour standard would be more
protective of human health, especially for children and adults who are
active outdoors and individuals with a pre-existing respiratory disease
like asthma. Id.
On May 21, 2012, the EPA published its final attainment/
nonattainment designations for areas across the country with respect to
the 2008 8-hour ozone standard. 77 FR 30088. This action became
effective on July 20, 2012. Within that action, the EPA designated two
8-hour ozone marginal
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nonattainment areas in New York State, which were the New York portion
of the NYMA and the Jamestown nonattainment area. The remainder of New
York State was designated as unclassifiable/attainment. The New York
portion of the NYMA is composed of the five boroughs of New York City
and the surrounding counties of Nassau, Suffolk, Westchester, Rockland,
and the Shinnecock Indian Nation.\1\ 40 CFR 81.333. The Jamestown
nonattainment area is composed of Chautauqua County. Id. On May 4,
2016, the EPA determined that Jamestown attained the 2008 ozone NAAQS
by the July 20, 2015, attainment date and that the NYMA nonattainment
area did not, therefore reclassifying the New York portion of the NYMA
from a Marginal to a Moderate nonattainment area. 81 FR 26697.
Following the NYMA's reclassification, the nonattainment area had an
applicable attainment date of July 20, 2018. Id. Subsequently, the NYMA
nonattainment area also failed to meet the Moderate July 20, 2018,
attainment date. Therefore, on August 23, 2019, the EPA published a
final rule that reclassified the New York portion of the NYMA, and
other States' nonattainment areas, from Moderate to Serious for the
2008 ozone standard. 84 FR 44238. After the NYMA was reclassified to a
Serious nonattainment area, on November 29, 2021, New York submitted a
comprehensive SIP revision; this November 29, 2021 SIP revision
included an attainment demonstration and emission statement
certification and other required SIP elements relating to the 2008 8-
hour ozone standard for the Serious classification.\2\ The EPA
published a final rule that reclassified the New York portion of the
NYMA, along with other States' nonattainment areas, from Serious to
Severe because the NYMA nonattainment area also failed to meet the
Serious area attainment date of July 20, 2021. 87 FR 60926 (October 7,
2022). This reclassification to Severe resulted in a revised attainment
date for the New York portion of the NYMA of July 20, 2027. Id. A SIP
submittal to address the requirements associated with the Severe
classification was due on May 7, 2024. Id.
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\1\ Information pertaining to areas of Indian country is
intended for CAA planning purposes only and is not an EPA
determination of Indian country status or any Indian country
boundary. The EPA lacks the authority to establish Indian country
land status and makes no determination of Indian country boundaries.
77 FR 30088 (May 21, 2012).
\2\ On November 9, 2023, the EPA approved portions of a
comprehensive SIP revision submitted by New York on November 29,
2021, which included: (1) The reasonable further progress plan and
transportation conformity budgets for the 2008 8-hour ozone Serious
classification of the NYMA; (2) an ozone nonattainment new source
review (NNSR) program which applies state-wide for emissions of
NOX and VOC from stationary sources; (3) a nonattainment
emission inventory; and (4) clean fuels for fleets. See 88 FR 77208.
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Regarding the 2015 ozone NAAQS, on June 4, 2018, the EPA published
a final rule establishing designations and classifications for this
standard for most areas of the country, including New York. See 83 FR
25776 (June 4, 2018). This final rule created a Moderate nonattainment
area within the NYMA, which includes the five boroughs of New York City
and the surrounding counties of Nassau, Suffolk, Westchester, Rockland
and the Shinnecock Indian Nation. Since the NYMA was reclassified to a
Moderate nonattainment area, New York, on January 29, 2021, submitted a
comprehensive SIP revision, including a Reasonably Available Control
Technology (RACT) and emission statement certification, relating to the
2015 8-hour ozone standard for the Moderate classification.\3\ On July
25, 2024, the EPA granted a voluntary reclassification request under
CAA section 181(b)(3) for the NY-NJ-CT nonattainment area for the 2015
ozone NAAQS, which reclassified the area from Moderate to Serious. 89
FR 60314. SIP submissions that address the requirements associated with
the Serious classification are due on January 1, 2026. 90 FR 5651.
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\3\ On November 9, 2023, the EPA approved portions of a
comprehensive SIP revision submitted by New York on January 29,
2021, which included: (1) RACT certification for the 2008 8-hour
Ozone NAAQS in the New York portion of the NY-NJ-CT nonattainment
area for the Serious classification; (2) RACT certification for the
2015 8-hour Ozone NAAQS in the New York portion of the NY-NJ-CT
nonattainment area for the Moderate classification; and (3) RACT
certification for the 2015 8-hour Ozone NAAQS throughout the entire
State of New York to address RACT commitments as part of the Ozone
Transport Region. 88 FR 77208.
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Additionally, on December 6, 2018, the EPA published a final rule
outlining requirements for States to follow for implementing their 2015
ozone NAAQS (2015 Ozone Implementation Rule). 83 FR 62998. The December
6, 2018, rule provides that air agencies must either submit the
emission statement regulation required by CAA section 182(a)(2)(B) or
provide a written statement to the EPA as a SIP revision for approval
certifying a previously approved regulation. Id.
B. Statutory and Regulatory Requirements for Emission Statements
The air quality planning and SIP requirements for ozone
nonattainment and transport areas are established in subparts 1 and 2
of part D of title I of the Act, as amended in 1990. The EPA published
a ``General Preamble'' and ``Appendices to the General Preamble,''
which describe how the EPA intends to review SIPs submitted under title
I of the Act. 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28,
1992). The EPA has also issued a draft guidance document, entitled
``Guidance on the Implementation of an Emission Statement Program''
(Emission Statement Guidance), dated July 1992, which describes the
minimum requirements for approvable emission statement programs.\4\
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\4\ EPA, Guidance on the Implementation of an Emission Statement
Program, available at https://www.epa.gov/air-emissions-inventories/guidance-implementation-emission-statement-program (URL dated March
25th, 2025).
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Section 182(a)(3)(B)(i) of the Act requires that States, which
contain all or part of any non-attainment area, submit SIP revisions to
the EPA by November 15, 1992. The provision further requires that
owners/operators of stationary sources of volatile organic compounds
(VOC) and nitrogen oxides (NOX) provide the State with a
statement, at least annually, of the source's actual emissions of VOC
and NOX. Sources were to submit their first emission
statements to their respective States by November 15, 1993. Pursuant to
the Emission Statement Guidance, if the source emits either VOC or
NOX at or above levels for which the State Emission
Statement rule requires reporting, then the source should include the
other pollutant (i.e., VOC or NOX) in the same facility's
emission statement, even if the source emits the other pollutant below
the minimum reporting level.
Section 182(a)(3)(B)(ii) of the Act allows States to waive, with
the EPA's approval, the requirement for an emission statement for
classes or categories of sources located in nonattainment areas, which
emit less than 25 tons per year (tpy) of the actual plantwide VOC or
NOX. The section 182(a)(3)(B)(ii) waiver includes the
following conditions: (1) the class or category of sources are included
in the base year and periodic inventories, and (2) emissions are
calculated using emission factors established by the EPA, such as those
found in EPA publication AP-42 or other methods acceptable to the
EPA.\5\
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\5\ EPA, AP-42 Compilation of Air Pollutant Emissions Factors
from Stationary Sources, available at https://www.epa.gov/air-emissions-factors-and-quantification/ap-42-compilation-air-emissions-factors-stationary-sources (URL dated March 27th, 2025).
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The required Emission Statement Program defines how air agencies
obtain emissions data directly from certain
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facilities and then report this data, along with other information, to
the EPA as part of the SIP emission inventories required under CAA
sections 182(a)(1) and 182(a)(3)(A). The Emission Statement Program is
generally referred to as an emissions statement regulation as it
outlines how certain facilities must report emissions and facility
activity data to an air agency (typically a state agency). Reports
submitted to air agencies must be accompanied by ``a certification that
the information contained'' in the report is ``accurate to the best
knowledge'' of the facility.\6\ To properly implement the emissions
reporting requirements, emissions statement regulations should be
coordinated carefully with the data elements required by the EPA (see
40 CFR 51.1115 and 40 CFR 51.1315).
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\6\ U.S. EPA 1992 Guidance of the Implementation of an Emission
Statement Program, Research Triangle Park, NC. Appendix B-2.
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III. Summary and Evaluation of New York's Emission Statement
Certifications
As discussed in section I., New York's January 29, 2021, and
November 29, 2021, comprehensive SIP submissions included emission
statement certifications for the Moderate and Serious classifications
of the New York portion of the NYMA for the 2015 and 2008 Ozone NAAQS,
respectively.
In New York's January 2021 SIP submittal, the State certified that
its state-wide federally approved regulation at title 6 of the New York
Code of Rules and Regulation (NYCRR) subpart 202-2, ``Emission
Statements,'' satisfies the federal requirement for an emission
statement program for the 2015 70 ppb 8-hour ozone NAAQS (6 NYCRR
subpart 202-2). The EPA most recently approved New York's state-wide
certification on May 13, 2020, for satisfying the requirement of an
emission statement program for the 2008 8-hour ozone NAAQS for the
Moderate classification. 85 FR 28490.
The EPA stated in the 2015 ozone implementation rule that if an
area has a previously approved emission statement rule enforced for (1)
the 2008 ozone NAAQS; (2) the 1997 ozone NAAQS; or (3) the 1-hour ozone
NAAQS that covers all portions of the nonattainment area for the 2015
ozone NAAQS, then such a rule should be sufficient for the purposes of
the emissions statement requirement for the 2015 ozone NAAQS.83 FR
62998 (December 06, 2018).
Under 6 NYCRR subpart 202-2, ``Emission Statements,'' owners or
operators of a major facility within the State, including stationary
sources of VOCs or NOX that emit 25 tpy or greater, must
submit annual emission statements to the New York Department of
Environmental Conservation (NYSDEC).\7\ The emission statements
submitted to the NYSDEC are required to include actual annual emissions
of VOC and NOX in units of pounds per year. Consistent with
40 CFR 51.1115(d) and 40 CFR 51.1315(d), the NYSDEC develops and
submits reports of emissions from point sources to the EPA pursuant to
the Federal Air Emission Reporting Requirements (AERR) Rule for
uploading to the EPA's National Emission Inventory (NEI).
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\7\ Pursuant to CAA section 182(a)(3)(B)(ii), facilities that
are not included in New York's Emission Statement Program are still
included the State's subsequent periodic emission inventories. 6
NYCRR subpart 202-2.2(b)(3) provides, that ``every three annual
reportable emissions shall include the actual annual emissions of
exempt emission sources,'' while 6 NYCRR subpart 202-2.3(e) requires
facilities to report estimates of VOC, NOX,
SO2, PM2.5, PM10, and CO emissions
from exempt activities every three years as part of the periodic
emission inventory.
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New York certifies that the emission statement requirement of CAA
section 182(a)(3)(B) is fully addressed through 6 NYCRR subpart 202-2,
which is applicable state-wide.\8\ Therefore, the EPA is proposing to
approve New York's emission statement certification that the previously
approved SIP element fully meets the requirements of the CAA for the
Moderate classification of the 2015 8-hour ozone NAAQS for the New York
portion of the NYMA nonattainment area. The EPA determines that the
State's previously approved emission statement program is certified to
meet the requirements for the Moderate classification of the 2015 Ozone
NAAQS, since the program collects data on actual VOC and NOX
emissions in pounds per year from major sources that emit or have the
potential to emit 25 tpy or greater of VOC or NOX. Appendix
A to subpart A of part 51, title 40. The EPA approved a revision to 6
NYCRR subpart 202-2 into New York's SIP on December 28, 2023. 88 FR
89593.
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\8\ The EPA approved this state-wide certification on May 13,
2020, for the 2008 75ppb 8-hour ozone NAAQS Moderate classification
(85 FR 28490).
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In the November 29, 2021, SIP submittal, New York also certifies
that the same state-wide federally approved regulation at 6 NYCRR
subpart 202-2, ``Emission Statements,'' continues to satisfy the CAA
section 182(a)(3)(B) and section 182(c) requirements for an emission
statement program for the Serious classification of the 2008 75 ppb 8-
hour ozone NAAQS. Similarly, the EPA stated in the 2008 ozone
implementation rule that if an area has a previously approved emission
statement rule enforced for the 1997 ozone NAAQS or the 1-hour ozone
NAAQS that covers all portions of the nonattainment area for the 2008
ozone NAAQS, such rule should be sufficient for purposes of the
emissions statement requirement for the 2008 ozone NAAQS. 80 FR 12264
(March 6, 2015). As described earlier in this section, on May 13, 2020,
the EPA approved New York's state-wide certifications, for addressing
the emission statement requirement as it relates to the NYMA's 2008
75ppb 8-hour ozone NAAQS Moderate classification. 85 FR 28490.
Therefore, the EPA is also proposing to approve New York's emission
statement certification that the previously approved SIP element fully
meets the CAA requirements for the Serious classification of the 2008
8-hour ozone NAAQS for the New York portion of the NYMA nonattainment
area.
IV. The EPA's Proposed Action
In this rule, the EPA is proposing to approve the certifications
included in New York State's January 29, 2021, and November 29, 2021,
comprehensive SIP revisions. Within the January 29, 2021, comprehensive
SIP revision, New York certified that the State has satisfied the
requirements of an emission statement program for the 2015 ozone
Moderate classification, pursuant to CAA sections 182(a)(3)(B) and
182(b), for the NYMA nonattainment area. Additionally, New York's
November 29, 2021, comprehensive SIP revision provided certification
that the State's existing emission statement regulation addresses the
requirements of an emission statement program for the 2008 ozone
Serious classification, pursuant to CAA sections 182(a)(3)(B) and
182(c), for the NYMA nonattainment area. The EPA has determined that
New York's federally approved emission statement regulation, 6 NYCRR
subpart 202-2, ``Emission Statements,'' continues to properly implement
the emissions statement requirements of CAA sections 182(a)(3)(B) and
182(c) consistent with 40 CFR 51.1115 and 40 CFR 51.1315.
The EPA is soliciting public comments on the issues discussed in
this document. These comments will be considered before taking final
action. Interested parties may participate in the Federal rulemaking
procedure by submitting written comments to this proposed rule by
following the instructions listed in the ADDRESSES section of this
Federal Register document.
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V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Clean Air Act and
applicable Federal regulations. 42 U.S.C. 7410(k)(3); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely proposes to approve State law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by State law. For that reason, this
proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Is not subject to Executive Order 14192 (90 FR 9065,
February 6, 2025) because SIP actions are exempt from review under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not 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 CAA.
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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Nitrogen
oxides, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Michael Martucci,
Regional Administrator, Region 2.
[FR Doc. 2025-08077 Filed 5-7-25; 8:45 am]
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