[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 95047-95050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31018]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2016-0478, FRL-9957-08-Region 2]
Approval and Promulgation of Implementation Plans; New York
Prevention of Significant Deterioration of Air Quality and
Nonattainment New Source Review; Infrastructure State Implementation
Plan Requirements
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve revisions to the New York State Implementation Plan
(SIP) amending existing nonattainment New Source Review (NNSR) and
attainment New Source Review (Prevention of Significant Deterioration
of Air Quality, PSD) program requirements that the New York State
Department of Environmental Conservation (NYSDEC) submitted to EPA on
October 12, 2011. Specifically, the SIP revision includes new
requirements pertaining to the regulation of particulate matter with an
aerodynamic diameter less than or equal to 2.5 micrometer
(PM2.5) and the regulation of Greenhouse Gases (GHGs) under
New York's Part 231, ``New Source Review for New and Modified
Facilities;'' Part 201, ``Permits and Registrations;'' and amendments
to Part 200, ``General Provisions,'' of Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York (6
NYCRR). The SIP revision will make the SIP consistent with existing
federal requirements. The EPA is also taking final action to approve
certain elements of New York SIP revisions submitted to demonstrate
that the State meets the requirements of section 110(a)(1) and (2) of
the Clean Air Act (CAA) for the 2008 lead (Pb), 2008 ozone, and 2010
sulfur dioxide (SO2) national ambient air quality standards
(NAAQS).
DATES: This rule is effective on January 26, 2017.
ADDRESSES: EPA has established a docket for this action under Docket ID
number EPA-R02-OAR-2016-0478. All documents in the docket are listed on
the http://www.regulations.gov Web site.
FOR FURTHER INFORMATION CONTACT: Frank Jon, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-4085; email address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, references to
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the
Environmental Protection Agency. The supplementary information is
arranged as follows:
I. What is the background for this action?
II. What sections of New York's rules are we approving in this
action?
III. What are EPA's responses to comments to EPA's proposal?
IV. What action is EPA taking?
V. Incorporation By Reference.
VI. Statutory and Executive Order Reviews.
I. What is the background for this action?
On October 12, 2011, the New York State Department of Environmental
Conservation (NYSDEC) submitted to EPA Region 2 a new set of revisions
to the New York State Implementation Plan (SIP). This submittal
consists of revisions to Title 6 of the New York Code of Rules and
Regulations (6 NYCRR) Part 231, New Source Review for New and Modified
Facilities; 6 NYCRR Part 200, General Provisions; and 6 NYCRR Part 201,
Permits and Certificates. New York undertook this rulemaking to comply
with EPA's May 16, 2008 NSR final rule for the regulation of
particulate matter with an aerodynamic diameter less than or equal to
2.5 micrometers (PM2.5). Also, the revisions implement EPA's
October 20, 2010 final rule that establishes the PM2.5
increments, significant impact levels, and significant monitoring
concentrations. New York's rulemaking implements PM2.5
provisions that were not previously included in the November 17, 2010
EPA SIP approval of Part 231. This SIP revision also incorporates
provisions that conform to EPA's June 3, 2010 final rule for Greenhouse
Gases (GHGs) under its PSD and Title V programs, establishing major
source applicability threshold levels for GHG emissions and other
conforming changes such as the establishment of global warming
potential values for calculating CO2 equivalents under New
York's PSD and Title V programs. In today's action, the EPA is taking
final action to approve those revisions by issuing a full approval, as
proposed (see 81 FR 63448 (September 15, 2016)).
The EPA is also taking action to approve certain elements of New
York SIP revisions as meeting CAA section 110(a) requirements for the
2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. NYSDEC submitted a
SIP for the 2008 Pb NAAQS on October 13, 2011, as supplemented on
February 24, 2012, and for the 2008 ozone NAAQS on April
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4, 2013 and the 2010 SO2 NAAQS on October 3, 2013.
Under CAA sections 110(a)(1) and (2), states are required to submit
SIPs that provide for the implementation, maintenance and enforcement
of the NAAQS. The EPA refers to these types of SIP submissions as the
``infrastructure'' SIPs. States must make infrastructure SIP
submissions within 3 years after the promulgation of a new or revised
NAAQS. On November 12, 2008 (73 FR 66964), EPA promulgated a revised
NAAQS for Pb, which is 0.15 micrograms per cubic meter of air ([mu]g/
m\3\) maximum not to be exceeded on a rolling 3-month average. On March
27, 2008 (73 FR 16436), EPA revised the level of the 8-hour ozone NAAQS
from 0.08 parts per million (ppm) to 0.075 ppm. On June 22, 2010 (75 FR
35520), EPA promulgated a revised NAAQS for SO2 at a level
of 75 ppb, based on a 3-year average of the annual 99th percentile of
1-hour daily maximum concentrations.
This final action pertains only to the portions of the
infrastructure SIPs submitted for the 2008 Pb, 2008 ozone, and 2010
SO2 NAAQs pertaining to CAA sections 110(a)(2)(C);
110(a)(2)(D)(i)(II) prong 3 (PSD); and 110(a)(2)(J). The reader is
referred to the September 15, 2016 proposed rulemaking for a detailed
discussion of New York's submittals and EPA's review and proposed
actions.
II. What sections of New York's rules are we approving in this action?
With respect to 6 NYCRR Part 200, the EPA is taking final action to
approve into the New York SIP revisions to Section 200.1, specifically,
subparts 200.1(bj), 200.1(bl), 200.1(cj), 200.1(cu) through 200.1(cv),
together with revisions to Section 200.9, Table 1, as delineated in the
New York October 12, 2011 submittal to EPA.
With respect to 6 NYCRR Part 201, the EPA is taking final action to
approve into the New York SIP revisions to subpart 201-2.1(b)(21) with
the exception of changes to the definitions in subparts 201-
2.1(b)(21)(i) and 201-2.1(b)(21)(v) which were withdrawn by the NYSDEC.
With respect to 6 NYCRR part 231, the EPA is taking final action to
approve all of part 231 into the New York SIP except certain revisions
to part 231 which were withdrawn by the NYSDEC. The withdrawn revisions
which are not being approved into the New York SIP are, as identified
in EPA's September 15, 2016 proposal, certain portions of subpart 231-
5.5(b)(3) and 231-6.6(b)(3), 231-10.1(d), 231-12.7 containing the
Significant Impact Levels (SILs) for PM2.5, Section 231-13.5
Table 5 containing the GHG major source thresholds for sources that are
major for GHG only and subpart 231-12.4(a)(1) containing the
PM2.5 Significant Monitoring Concentration (SMC) of 4 [mu]g/
m\3\. However, EPA approves New York's replacement of the SMC value
with zero (0) until future regulatory changes are made.
III. What are EPA's responses to comments to EPA's proposal?
In response to EPA's September 15, 2016 (81 FR 63448) proposed
approval, the EPA received no comments during the public comment
period.
IV. What action is EPA taking?
The EPA is taking a final action to approve revisions of 6 NYCRR
parts 200, 201, and 231 to the New York State Implementation Plan (SIP)
as specified in Section II of this notice and submitted by the New York
State Department of Environmental Conservation (NYSDEC) on October 12,
2011, with the exception of the NYSDEC withdrawn items listed in
Section II of this notice.
EPA is also taking final action to approve New York's
infrastructure SIP submittals for 2008 Pb, 2008 ozone, and 2010
SO2 for CAA Section 110(a)(2) elements and sub-elements, as
follows: 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J).
V. Incorporation By Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of revised
versions of 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231
described in the proposed amendments to 40 CFR part 52 set forth below.
Therefore, these materials have been approved by EPA for inclusion in
the State Implementation Plan, have been incorporated by reference by
EPA into that plan, are fully federally enforceable under sections 110
and 113 of the CAA as of the effective date of the final rulemaking of
EPA's approval, and will be incorporated by reference by the Director
of the Federal Register in the next update to the SIP compilation.\1\
EPA has made, and will continue to make, these documents generally
available electronically through http://www.regulations.gov and/or in
hard copy at the appropriate EPA office (please contact the person
identified in the For Further Information Contact section of this
preamble for more information).
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\1\ 62 FR 27968 (May 22, 1997)
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VI. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the CAA and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175, because the SIP is not approved to
apply in Indian country located in the State, and EPA
[[Page 95049]]
notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law. Thus Executive Order 13175 does not
apply to this action.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 27, 2017. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: November 22, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. In Sec. 52.1670:
0
a. The table in paragraph (c) is amended by revising four entries for
``Title 6, Part 200, Subpart 200.1'', ``Title 6, Part 200, Subpart
200.9'', ``Title 6, Part 201, Subpart 201-2.1(b)(21)'', and ``Title 6,
Part 231''; and
0
b. The table in paragraph (e) is amended by:
0
i. Adding another entry titled ``Section 110(a)(2) Infrastructure
Requirements for the 2008 ozone NAAQS'' at the end of the table; and
0
ii. Adding two entries titled ``Section 110(a)(2) Infrastructure
Requirements for the 2008 Pb NAAQS'' and ``Section 110(a)(2)
Infrastructure Requirements for the 2010 SO2 NAAQS'' at the
end of the table.
The additions read as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(c) * * *
EPA-Approved New York State Regulations and Laws
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State EPA approval
State citation Title/subject effective date date Comments
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Title 6, Part 200, Subpart 200.1. General Provisions, 10/15/11 12/27/16 The word odor is removed
Definitions. from the Subpart
200.1(d) definition of
``air contaminant or
air pollutant.''
Redesignation of non-
attainment areas to
attainment areas
(200.1(av)) does not
relieve a source from
compliance with
previously applicable
requirements as per
letter of Nov. 13, 1981
from H. Hovey, NYSDEC.
Changes in definitions
are acceptable to EPA
unless a previously
approved definition is
necessary for
implementation of an
existing SIP
regulation.
EPA is including the
definition of
``federally
enforceable'' with the
understanding that (1)
the definition applies
to provisions of a
Title V permit that are
correctly identified as
federally enforceable,
and (2) a source
accepts operating
limits and conditions
to lower its potential
to emit to become a
minor source, not to
``avoid'' applicable
requirements.
EPA is approving
incorporation by
reference of those
documents that are not
already federally
enforceable.
EPA approval finalized
at [Insert Federal
Register citation].
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* * * * * * *
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Title 6, Part 200, Subpart 200.9. General Provisions, 10/15/11 12/27/16 EPA is approving
Referenced reference documents
Material. that are not Federally
enforceable.
EPA approval finalized
at [Insert Federal
Register citation].
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[[Page 95050]]
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Title 6, Part 201, Subpart 201- Permits and 10/15/11 12/27/16 EPA is including the
2.1(b)(21). Registrations, definition of ``Major
Definitions. stationary source or
major source or major
facility'' with the
understanding that the
definition applies only
to provisions of Part
231.
Revisions are approved
except for changes to
the definitions in 201-
2.1(b)(21)(i) and 201-
2.1(b)(21)(v) withdrawn
by NYSDEC as per July
28, 2016 letter to EPA
Region 2.
EPA approval finalized
at [Insert Federal
Register citation].
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Title 6, Part 231................ New Source Review 10/15/11 12/27/16 Full approval except for
for New and certain revisions to
Modified 231-5.5(b)(3), 231-
Facilities. 6.6(b)(3), 231-10.1(d),
231-12.4(a)(1), 231-
12.7, and 231-13.5
Table 5 withdrawn by
NYSDEC as per July 28,
2016 NYSDEC letter to
EPA Region 2.
The PM2.5 Significant
Monitoring
Concentration (SMC) is
approved as 0 [mu]g/m3
in 231-12.4(a)(1).
EPA approval finalized
at [Insert Federal
Register citation].
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(e) * * *
EPA-Approved Nonregulatory and Quasi-Regulatory Provisions
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Applicable
geographic or New York
Action/SIP element nonattainment submittal date EPA approval date Explanation
area
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* * * * * * *
Section 110(a)(2) Statewide........ 04/04/2013....... 12/27/2016, This action addresses
Infrastructure Requirements [Insert Federal the following CAA
for the 2008 ozone NAAQS. Register elements:
citation]. 110(a)(2)(C),
(D)(i)(II) prong 3,
and (J).
Section 110(a)(2) Statewide........ 10/13/11, and 12/27/2016, This action addresses
Infrastructure Requirements supplemented on [Insert Federal the following CAA
for the 2008 Pb NAAQS. 2/24/12. Register elements:
citation]. 110(a)(2)(C),
(D)(i)(II) prong 3,
and (J).
Section 110(a)(2) Statewide........ 10/03/2013....... 12/27/2016, This action addresses
Infrastructure Requirements [Insert Federal the following CAA
for the 2010 SO2 NAAQS. Register elements:
citation]. 110(a)(2)(C),
(D)(i)(II) prong 3,
and (J).
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[FR Doc. 2016-31018 Filed 12-23-16; 8:45 am]
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