[Federal Register Volume 82, Number 177 (Thursday, September 14, 2017)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19453]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2017-0459, FRL-9967-76-Region 2]
Approval and Promulgation of Implementation Plans; New York;
Reasonably Available Control Technology for the 2008 8-Hour Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
conditionally approve a State Implementation Plan (SIP) submitted by
the State of New York for purposes of implementing Reasonably Available
Control Technology (RACT) for the 2008 8-hour ozone National Ambient
Air Quality Standard (NAAQS). This proposed approval is conditioned on
New York's timely submittal of a supplement to the SIP that includes a
revised regulatory RACT requirement related to control of volatile
organic compounds from Industrial Cleaning Solvents. The EPA is
proposing to approve New York's RACT SIP as it applies to non-control
technique guideline major sources and major sources of oxides of
nitrogen. The EPA is also proposing to approve the State of New York's
non-attainment new source review certification as sufficient for
purposes of satisfying the 2008 8-hour ozone NAAQS. This action is
being taken in accordance with the requirements of the Clean Air Act.
DATES: Written comments must be received on or before October 16, 2017.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2017-0459 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Environmental
Protection Agency, 290 Broadway, New York, New York 10007-1866, at
(212) 637-3892, or by email at [email protected].
The Supplementary Information section is arranged as follows:
Table of Contents
I. What action is the EPA proposing?
II. What is the background for this proposed rulemaking?
III. What did New York submit?
IV. What is the EPA's evaluation of New York's SIP submittal?
V. How could New York get full approval for this SIP revision?
VI. Statutory and Executive Order Reviews
I. What action is the EPA proposing?
The EPA is proposing to conditionally approve a State
Implementation Plan (SIP) submitted by the State of New York on
December 22, 2014 for purposes of implementing Reasonably Available
Control Technology (RACT) \1\ for the 2008 8-hour ozone National
Ambient Air Quality Standard (NAAQS or standard). The State's December
2014 SIP revision consists of a demonstration that New York meets the
RACT requirements for the two precursors for ground-level ozone, i.e.,
oxides of nitrogen (NOX) and volatile organic compounds
(VOCs), set forth by the Clean Air Act (CAA or Act) with respect to the
2008 ozone standard.
\1\ The EPA has defined RACT as the lowest emission limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility (44 FR 53762, September 17,
However, in New York's December 2014 SIP submittal, the State
indicates that the RACT requirements for the 2008 ozone NAAQS have been
fulfilled with the exception of sources subject to the industrial
cleaning solvents control techniques guidelines (CTG). In the State's
submittal, New York committed to address sources subject to this CTG
through a timely revision to Part 226 entitled, ``Solvent Metal
Cleaning Processes'' of Title 6 of the New York Codes, Rules and
Regulations (6 NYCRR Part 226). Therefore, consistent with Section
110(k)(4) of the Clean Air Act, the EPA is conditioning its approval of
New York's December 2014 SIP submittal on New York's commitment to
submit, by a date certain but not later than one year after the date of
the EPA's conditional approval of New York's December 2014 SIP
submittal, a revised Part 226 addressing VOC emissions from industrial
cleaning solvents. The State's commitment must be submitted to EPA, as
a supplement to the SIP, and include a date certain by which the State
will submit Part 226, and the date certain must be no later than one
year from the effective date of the EPA's final rule making action on
New York's December 2014 SIP submittal. New York must commit in writing
to correct the deficiency discussed above.
The EPA is proposing to approve New York's RACT SIP as it applies
to non-CTG major sources of VOCs and to major sources of
NOX. The EPA is also proposing to approve New York's
certification that nonattainment new source review (NNSR) applies
statewide for NOX and VOC emissions from stationary sources.
It should be noted that a court ordered consent decree \2\ requires
that the EPA shall sign a notice of final rulemaking on New York's
December 2014 RACT SIP no later than November 30, 2017.
\2\ Center for Biological Diversity v. Gina McCarthy, Case No.
4:16-cv-04092-PJH (N.D.Ca.), Revised Consent Decree dated 1/19/17.
II. What is the background for this proposed rulemaking?
In 2008, EPA revised the health based NAAQS for ozone, setting it
at 0.075 parts per million (ppm) averaged over an 8-hour time frame.
The EPA determined that the revised 8-hour standard would be more
protective of human health, especially with regard to children and
adults who are active outdoors and individuals with a pre-existing
respiratory disease such as asthma.
On May 21, 2012 (77 FR 30087), the EPA finalized its attainment/
nonattainment designations for areas across the country with respect to
the 2008 8-hour ozone standard. This action became effective on July
20, 2012. The two 8-hour ozone marginal nonattainment areas located in
New York State are the New York-Northern New Jersey-Long Island (NY-NJ-
CT) nonattainment area and the Jamestown
nonattainment area. The remainder of New York State was designated as
unclassifiable/attainment. The New York portion of the NY-NJ-CT
nonattainment area, also referred to as the New York Metropolitan Area
(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.\3\ The Jamestown nonattainment area is
composed of Chautauqua County. On May 4, 2016 (81 FR 26697), the EPA
determined that Jamestown attained the 2008 ozone standard by the July
20, 2015 attainment date and that the NY-NJ-CT nonattainment area did
not attain the 2008 ozone standard by the applicable attainment date
and is reclassified from a marginal to a moderate nonattainment area.
State attainment plans for moderate nonattainment areas were due by
January 1, 2017. Jamestown is still classified as a marginal
nonattainment area until the State submits a redesignation request \4\
to the EPA. Since the NYMA has been reclassified to a moderate
nonattainment area, New York plans to submit a new RACT determination
as part of the State's attainment demonstration for the 2008 ozone
\3\ 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
at 77 FR 30087 (May 21, 2012).
\4\ EPA's determination of attainment does not constitute a
redesignation to attainment. Redesignation requires states to meet a
number of additional statutory criteria, including the EPA approval
of a state plan demonstrating maintenance of the air quality
standard for 10 years after redesignation. (81 FR 26697 at 26701;
May 4, 2016).
The counties in the NYMA (and part of Orange County) were
previously classified under the 1979 1-hour ozone NAAQS as severe,
requiring RACT, while the remaining counties in the State were subject
to RACT as part of the moderate classification or as part of the Ozone
Transport Region (OTR). In the NYMA and other portions of Orange
County, the previous severe classification resulted in a requirement
for major sources to be defined as those having emissions of 25 tons
per year or more for either VOC or NOX.
In areas classified as moderate or areas located in the OTR (which
includes all of New York State) under the 8-hour ozone standard, the
definition for major sources in New York would have been 50 tons per
year for VOC and 100 tons per year for NOX. New York chose
to retain the 1-hour ozone plan emission threshold of 25 tons per year
in the NYMA and a portion of Orange County for purposes of the RACT
analysis which results in a more stringent evaluation of RACT. The rest
of the state follows major source definitions as previously mentioned.
Sections 172(c)(1) and 182(b)(2) of the CAA require states to
implement RACT in areas classified as moderate (and higher)
nonattainment for ozone, while section 184(b)(1)(B) of the CAA requires
RACT in states located in the OTR. Specifically, these areas are
required to implement RACT for all major VOC and NOX
emission sources and for all sources covered by a Control Techniques
Guideline (CTG). A CTG is a document issued by the EPA which
establishes a ``presumptive norm'' for RACT for a specific VOC source
category. A related set of documents, Alternative Control Techniques
(ACT) documents, exists primarily for NOX control
requirements. States must submit rules, or negative declarations when
the State has no such sources, for CTG source categories, but not for
sources in ACT categories. However, RACT must be imposed on major
sources of NOX, and some of those major sources may be
within a sector covered by an ACT document.
On March 6, 2015 (80 FR 12264), the EPA published a final rule that
outlined the obligations that areas found to be in nonattainment of the
2008 ozone NAAQS need to address. This rule, herein referred to as the
``2008 ozone implementation rule,'' contained, among other things, a
description of the EPA's expectations for states with RACT obligations.
The 2008 ozone implementation rule indicated that states could meet
RACT through the establishment of new or more stringent requirements
that meet RACT control levels, through a certification that previously
adopted RACT controls in their SIP approved by the EPA under a prior
ozone NAAQS represents adequate RACT control levels for attainment of
the 2008 ozone NAAQS, or a combination of these two approaches. In
addition, a state must submit a negative declaration in instances where
there are no CTG sources. The 2008 ozone implementation rule requires
that states with nonattainment areas were required to submit RACT SIPs
to EPA within two years from the effective date of nonattainment
designation or by July 20, 2014.
III. What did New York submit?
On December 22, 2014, the New York Department of Environmental
Conservation (NYSDEC or New York) submitted to the EPA a formal
revision to its SIP. The SIP revision consists of information
documenting how New York complied with the RACT requirements for the
2008 8-hour ozone NAAQS. In its December 2014 RACT submittal, New York
certifies that the State's submittal addresses the RACT requirements
for the 2008 8-hour ozone standard, with the exception of the CTG for
industrial cleaning solvents. In New York's December 2014 RACT
submittal, the State commits to revise 6 NYCRR Part 226, ``Solvent
Metal Cleaning Processes,'' to fulfill that requirement in a timely
In New York's December 2014 RACT submittal, the State evaluated its
existing RACT regulations which were adopted to meet the 1997 8-hour
ozone standard to ascertain whether the same regulations constitute
RACT for the 2008 8-hour ozone standard. In making its new 8-hour ozone
RACT determination, New York relied on EPA's RACT Question and Answer
document (May 18, 2006) and the most recent emission control technology
and cost evaluations to determine what constitutes technically and
economically feasible controls for specific sources. Accordingly, the
basic framework for New York's December 2014 RACT SIP determination is
described as follows:
Identify all source categories covered by CTG and ACT
Identify applicable regulations that implement RACT.
Certify that the existing level of controls for the 1997
8-hour ozone standard equals RACT under the 2008 8-hour ozone standard
in certain cases.
Declare which sources covered by a CTG and ACT do not
exist within the state and/or that RACT is not applicable in certain
Identify and evaluate applicability of RACT to individual
sources whose source category does not have a presumptive emission
limit covered by a state-wide regulation.
Identify potential RACT revisions.
Identify statewide applicability of nonattainment new
source review (NNSR).
New York certified that, with the exception of Part 226, ``Solvent
Metal Cleaning Processes,'' which addresses VOC emissions from solvent
metal cleaning processes, all RACT regulations with SIP approved State
effective dates through the date when the RACT analysis was performed
in 2014 are RACT for the 2008 8-hour ozone NAAQS because the RACT
determinations issued by the State are consistent with the most recent
control technology and economic
considerations. The following discusses the results of New York's
analysis of RACT for the basic framework identified above.
CTGs and ACTs
New York reviewed its existing RACT regulations adopted under the
1979 1-hour and 1997 8-hour ozone standard to identify source
categories covered by the EPA's CTG and ACT documents. New York's RACT
SIP submittal lists the CTG and ACT documents and corresponding State
RACT regulations that cover the CTG and ACT sources included in New
York's emissions inventory. For non-CTG major sources, 6 NYCRR Part
212, ``General Process Emission Sources,'' regulates RACT compliance
for VOC and NOX. Major sources of NOX are
regulated by 6 NYCRR Part 227-2, ``Reasonably Available Control
Technology (RACT) for Major Facilities of Oxides of Nitrogen
(NOX).'' In its December 2014 SIP submittal, New York
certifies that major non-CTG sources are covered by the Part 212 RACT
With the exception of VOC emissions from industrial cleaning
solvents, New York has implemented RACT controls state-wide for all
CTGs that the EPA has issued as of December 2014. The following table
lists the RACT controls that have been promulgated in 6 NYCRR and the
corresponding EPA SIP approval dates.
NY regulation Title EPA approval date
Part 205.................................. Architectural and Industrial 12/13/04, 69 FR 72118
Part 211.................................. General Prohibitions........ 7/12/13, 78 FR 41846
Part 212.................................. General Process Emission 7/12/13, 78 FR 41486
Part 214.................................. Byproduct Coke Oven 7/20/06, 71 FR 41163
Part 216.................................. Iron and/or Steel Processes. 7/20/06, 71 FR 41163
Part 220.................................. Portland Cement and Glass 7/12/13, 78 FR 41486
Part 223.................................. Petroleum Refineries........ 7/19/85, 50 FR 29382
Part 224.................................. Sulfuric and Nitric Acid 7/19/85, 50 FR 29382
Part 226.................................. Solvent Metal Cleaning 1/23/04, 69 FR 3237
Part 227-2................................ RACT for Oxides of Nitrogen 7/12/13, 78 FR 41486
Part 228.................................. Surface Coating Processes... 3/04/14, 79 FR 12084
Part 229.................................. Petroleum and Volatile 12/23/97, 62 FR 67006
Organic Liquid Storage and
Part 230.................................. Gasoline Dispensing Sites 4/30/98, 63 FR 23668
and Transport Vehicles.
Part 232.................................. Dry Cleaning................ 6/17/85, 50 FR 25079
Part 233.................................. Pharmaceutical and Cosmetic 12/23/97, 62 FR 67006
Part 234.................................. Graphic Arts................ 3/08/12, 77 FR 13974
Part 236.................................. Synthetic Organic Chemical 7/27/93, 58 FR 40059
New York's December 2014 RACT submittal contains a table (see
Appendix A: Control Technique Guidelines and Alternative Control
Techniques Documents) listing all the CTG categories and the
corresponding State regulations or negative declarations that address
the requirements. The EPA had previously approved and incorporated into
the SIP all of the State's regulations identified in Appendix A that
For many source categories, the existing New York rules have more
stringent emission limits and/or lower thresholds of applicability than
the recommendations contained in the CTG and ACT documents. In its
submittal, New York identified some categories where controls may be
more stringent than the recommended levels contained in the CTG and ACT
documents and these are identified below in the section entitled
``Additional Control Measures Needed for Attainment.'' New York
considers and certifies that its SIP approved regulations meet the RACT
requirements for the 2008 8-hour ozone standard.
Source Categories Not Applicable in New York State
New York previously certified to the satisfaction of the EPA (40
CFR 52.1683(a)) that no sources are located in the nonattainment area
of the State which are covered by the following CTGs: (1) Natural Gas/
Gasoline Processing Plants; (2) Air Oxidation Processes at Synthetic
Organic Chemical Manufacturing Industries; and (3) Manufacture of High-
Density Polyethylene, Polypropylene, and Polystyrene Resins. In
addition, New York previously certified to the satisfaction of the EPA
(40 CFR 52.1683(b)) that no sources are located in the State which are
covered by the CTG for Fiberglass Boat Manufacturing Materials. New
York has reviewed its emission inventory and emission statements as
required under 6 NYCRR 202-2, ``Emission Statement,'' for stationary
sources and affirms that there are no sources within New York State for
the following CTGs: (1) Manufacture of Vegetable Oils,\5\ and (2)
Application of Agricultural Pesticides.
\5\ The CTG for the manufacturing of vegetable oils was
published in June 1978 (see EPA-450/2-78-035) but in a March 1980
guidance document, entitled ``Guidance for the Control of Volatile
Organic Compounds Emitted by Ten Selected Source Categories,'' the
EPA advised that the ``states are not required, at this time, to
develop regulations for the vegetable oil manufacturing industry.''
The EPA guidance has not been revised since the March 1980 guidance.
At this time, the EPA considers the vegetable oil CTG as only
guidance for states when they need to develop attainment plans in
In New York's September 2006 RACT submittal for the 1997 8-hour
ozone standard, the State indicated that there were no sources in the
State that are applicable to the CTG related to industrial cleaning
solvents; the State, however, has since determined that there are
sources in the State that are applicable to this CTG. In New York's
December 2014 RACT submittal, the State commits to revise and adopt in
a timely manner 6 NYCRR Part 226, ``Solvent Metal Cleaning Processes,''
to fulfill the requirements of the CTG for industrial cleaning
solvents. New York must commit to adopt and submit 6 NYCRR Part 226 to
EPA by a date certain but no later than one year from the effective
date of the EPA's final rule making action on New York's December 2014
Source-Specific RACT Determinations
The 8-hour ozone RACT analysis must address source-specific RACT as
it applies to a single regulated entity. A source-specific RACT
determination applies to sources that have obtained a facility-specific
emission limit or an alternative emission limit, i.e., a variance. A
case-by-case RACT analysis is required for sources that are not defined
by a specific source category covered by an existing state regulation,
that are requesting a variance, or that are
not addressed by a CTG. New York's RACT guidance entitled, ``DAR-20
Economic and Technical Analysis for Reasonably Available Control
Technology (RACT)'' outlines the process and conditions for granting
source-specific RACT determinations. Under the CAA, these individual
source-specific RACT determinations need to be submitted by the State
as a SIP revision for the EPA's approval. Therefore, New York included
in Appendix B of its December 2014 RACT SIP submittal a listing of VOC
and NOX source facilities that are subject to a RACT source-
specific SIP revision under the 8-hour ozone SIP and corresponding
emission limits, technology and the applicable regulation governing the
RACT determinations. Consistent with the CAA, in September 2008, August
2010, and December 2013, New York submitted to the EPA SIP revisions
that included most of the source-specific RACT revisions identified in
Appendix B of the RACT SIP submittals. The EPA is performing its
technical review of those submittals and will take separate rulemaking
actions for each of the source-specific determinations.
In addition, in accordance with New York's NOX RACT
regulation, Part 227-2, owners of combined cycle combustion turbines
are required to perform case-by-case RACT determinations that may
result in more stringent emission limits. This RACT requirement was
approved into the SIP on July 12, 2013 (78 FR 41846).
Additional Control Measures Needed for Attainment
In some instances, New York has adopted regulations with emission
limits that are more stringent than those recommended by the CTGs and
ACTs. For example, Part 228, ``Surface Coating Processes, Commercial
and Industrial Adhesives, Sealants and Primers,'' Part 234, ``Graphic
Arts,'' Part 241, ``Asphalt Pavement and Asphalt Based Surface
Coatings,'' and Part 227-2, ``Reasonably Available Control Technology
(RACT) for Major Facilities of Oxides of Nitrogen (NOX)''
have each been adopted by the State with more stringent limits or
applicability than what was recommended by the corresponding CTGs or
In New York's December 22, 2014 RACT SIP submittal, the State's
response to comments included an assessment that ``once the NYMA is
reclassified as `moderate' nonattainment for the 2008 ozone NAAQS and
an attainment SIP is required, DEC [New York] will undertake a review
of its many NOX control options to determine which would
most efficiently and effectively reduce emission in the NYMA.'' In this
regard, the EPA recommends that New York quantify potential reductions
for the following NOX control options. New York has the
opportunity to accomplish this when the State submits its RACT SIP for
the NYMA which was recently reclassified to moderate. On July 19, 2017,
New York, as part of its state rulemaking process, proposed its RACT
SIP for the reclassified moderate NYMA.
Municipal Waste Combustors
During the public comment period on New York's 2008 ozone RACT
proposal a comment was submitted to the State proposing that Municipal
Waste Combustors (MWCs) in the NYMA should be controlled to at least
the RACT level. In New York's response, the State indicated that once
the NYMA is classified as moderate the State would undertake a review
of its many control options to determine which would most effectively
and efficiently reduce emissions in the NYMA. As stated previously, the
NYMA was reclassified as a moderate nonattainment area effective June
2016. In its response to comment, New York estimated that potential
NOX reductions of 1.50 and 1.75 tons per day could be
obtained from MWCs located in the NYMA. New York's neighboring states
of New Jersey and Connecticut have adopted RACT emission limits for
MWCs that are more stringent than New York's current permitted limits.
New York regulates MWCs under Part 219 (Incinerators) and Part 200
(General Provisions). While New York's regulations are consistent with
sections 111(d) and 129 of the CAA for solid waste incinerators, New
York should consider more stringent limits for purposes of attaining
the 2008 ozone NAAQS. CAA section 129 emission requirements are based
on maximum achievable control technology (MACT) that is at least
comparable or better than RACT requirements. The EPA considers this
beyond RACT for purposes of today's rulemaking. Therefore, New York
should consider more stringent RACT level NOX emission
limits for MWCs located in the NYMA to help attain the 2008 ozone
Simple Cycle Combustion Turbines (Firing Distillate Oil or More Than
New York's NOX RACT regulation at Part 227-2 has set
NOX emission limits of 100 parts per million (ppmvd) \6\ for
simple cycle combustion turbines firing distillate oil or more than one
fuel. New York's neighboring state of Connecticut has adopted more
stringent NOX emission limits of 40-75 ppm for June 2018 and
40-50 ppm for June 2023 for this source category. New Jersey has also
adopted more stringent NOX emission limits of 42 ppm.\7\
Therefore, New York should consider more stringent RACT level
NOX emission limits for simple cycle turbines located
throughout the State for purposes of helping to attain the 2008 ozone
\6\ As measured on a dry volume basis and corrected to 15%
\7\ 42 ppm is equivalent to 1.6 lb/megawatt-hour which is the
limit at Table 7 of New Jersey's NOX RACT regulation,
Subchapter 19. Subchapter 19 at Table 7 notes that the limit is
applicable to high electric demand day (HEDD) units or a stationary
combustion turbine that is capable of generating 15 MW or more and
that commenced operation on or after May 1, 2005. In accordance with
Subchapter 19 definitions, units that commence operation on or after
May 1, 2005 are neither HEDD nor non-HEDD units.
NYCRR Part 222 for Distributed Generation (DG)
New York has adopted 6 NYCRR Part 222 for DG to address peaking
electric generation units which will help address emissions resulting
from high electric demand days (HEDD). Assuming Part 222 remains in
effect after current litigation concerning it is resolved, New York
should submit Part 222 as a SIP revision for EPA approval.
Alternatively, New York should consider other regulations for
addressing HEDD. In addition, as stated previously, the EPA also
recommends that New York review the simple cycle combustion turbine
limit of 100 ppmvd and consider adopting a more stringent limit similar
to that adopted by Connecticut.
Oil and Natural Gas CTG
On October 27, 2016, the EPA announced in the Federal Register (81
FR 74798) the availability of the oil and natural gas CTG. This CTG
provides information for states to determine RACT for VOC emissions
from certain oil and natural gas industry sources. The EPA recommends
that New York review this CTG for possible statewide VOC reductions.
Effected states are required to submit a SIP revision by October 20,
Statewide Nonattainment New Source Review (NNSR)
New York provides NNSR certification in the State's April 4, 2013
infrastructure SIP submittal for the 2008 ozone NAAQS. New York
provides additional affirmation in its December 2014 RACT submittal
that, since the State is located in the OTR, NNSR
applies statewide for emissions of VOC and NOX for new major
facilities or modifications to existing major or minor sources. New
major facilities or modification to existing major or minor facilities
in New York State are subject to the provisions of 6 NYCRR Part 231,
``New Source Review for New and Modified Facilities.'' NNSR requires
the application of Lowest Achievable Emission Rate (LAER) which is more
stringent than RACT. Furthermore, New York certifies in its December
2014 submittal that the State also relies upon federal rules such as
the National Emission Standards for Hazardous Air Pollutants (NESHAPs)
regulated under CAA section 112. NESHAPs establish MACT which may be
more stringent than RACT to control hazardous air pollutants.
Therefore, the EPA is proposing to approve New York's certification
that nonattainment NNSR applies statewide for NOX and VOC
emissions from stationary sources.
IV. What is the EPA's evaluation of New York's SIP submittal?
New York submitted a state-wide RACT assessment on December 22,
2014. The RACT submission from New York consists of: (1) A
certification that previously adopted RACT controls in New York's SIP
for various source categories that were approved by the EPA under the
1-hour and the 1997 8-hour ozone standards are based on the currently
available technically and economically feasible controls and that they
continue to represent RACT for the 2008 8-hour ozone standard for
implementation purposes; (2) a number of source-specific RACT
determinations submitted to the EPA for approval; (3) a negative
declaration that for certain CTGs and/or ACTs there are no sources
within New York State or that there are no sources within New York
above the applicability threshold; and (4) a commitment to revise and
adopt, and submit as a SIP revision a new or more stringent regulation
Part 226, that represent a RACT control level for sources subject to
the industrial cleaning solvents CTG.
The EPA has reviewed New York's RACT analysis and has determined
that the state-wide RACT analysis submitted on December 22, 2014 does
not fully address the RACT requirement consistent with section
182(b)(2) of the CAA because New York has not adopted the RACT measure,
6 NYCRR Part 226, related to sources subject to the industrial cleaning
Therefore, the EPA is proposing to conditionally approve New York's
state-wide RACT SIP based on the State's commitment to submit Part 226
by a date certain but no later than one year from the effective date of
the EPA's final rule making action on New York's December 2014 SIP
submittal. The EPA encourages New York to accelerate its rulemaking
process and adopt the control measures for sources subject to the
industrial cleaning solvents CTG. The EPA is proposing to approve the
remainder of New York's December 22, 2014 SIP submittal as it applies
to non-CTG major sources of VOCs and to major sources of
Furthermore, the EPA encourages New York to strengthen its ozone
SIP by adopting, and submitting as SIP revisions, additional control
measures needed for attainment of the 8-hour ozone standard by: (1)
Considering the adoption of more stringent emission limits for MWCs
located in the NYMA; (2) considering the adoption of more stringent
emission limits for simple cycle combustion turbines firing distillate
oil or more than one fuel; (3) adopting and submitting a regulation
that addresses the October 2016 oil and natural gas CTG; and (4)
submitting a SIP revision that addresses HEDD sources.
V. How could New York get full approval for this SIP revision?
The EPA is proposing to conditionally approve New York's state-wide
RACT submittal dated December 22, 2014 for purposes of satisfying the
2008 8-hour ozone standard RACT requirement. New York must correct the
deficiency discussed in section IV by revising, adopting and submitting
to the EPA, a new or more stringent regulation, Part 226, that
represent a RACT control level for sources subject to the industrial
cleaning solvents CTG. New York must commit to adopt and submit Part
226 to EPA as a SIP revision by a date certain but not later than one
year from the EPA's final action on this SIP action.
The EPA's conditional approval relates to New York's state-wide
RACT SIP revision as it applies to the relevant CAA CTG requirements
for VOC major sources. The EPA is proposing to approve the remainder of
New York's December 22, 2014 SIP submittal as it applies to non-CTG
major sources of VOCs and to major sources of NOX.
The EPA is also proposing to approve New York's NNSR certification
as sufficient for purposes of the 2008 ozone NAAQS.
Under section 110(k) of the CAA, the EPA may conditionally approve
a plan revision based on a commitment by the State to adopt specific
enforceable measures by a date certain but not later than one year
after the date of approval of the plan revision. If the EPA
conditionally approves the commitment in a final rulemaking action, the
State must meet its commitment to submit Part 226 that addresses the
industrial cleaning solvents CTG. If New York fails to meet its
commitment within the specified time period for any portion of the
deficient SIP requirement discussed in section IV above, the
conditional approval will, by operation of law, become a disapproval.
The EPA will notify the State by letter that this action has occurred.
At that time, this commitment will no longer be a part of the approved
SIP for New York and an 18 -month clock for sanctions under CAA section
179(a)(2) and a two-year clock for a federal implementation plan (FIP)
under CAA section 110(c)(1) would commence. The EPA subsequently will
publish a document in the Federal Register notifying the public that
the conditional approval converted to a disapproval. If New York meets
its commitment within the applicable time frame, the conditionally
approved submission will remain as part of the SIP until the EPA takes
final action approving or disapproving the SIP requirement in question.
If the EPA disapproves a State's new submittal, the conditionally
approved RACT SIP for the 2008 ozone standard will also be disapproved
at that time. If the EPA approves the submittal, the State's RACT SIP
for the 2008 ozone standard will be fully approved in its entirety and
replace the conditionally approved RACT SIP for the 2008 ozone RACT
standard in the SIP.
The EPA is soliciting public comments on the issues discussed in
this proposal. These comments will be considered before the EPA takes
final action. Interested parties may participate in the federal
rulemaking procedure by submitting written comments as discussed in the
ADDRESSES section of this rulemaking.
VI. 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 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 CAA; 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 proposed rulemaking action, pertaining to New
York's 2008 8-hour ozone RACT submission does not have tribal
implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is not approved to apply in Indian
country located in the state, and EPA notes that it will not impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 6, 2017.
Catherine R. McCabe,
Acting Regional Administrator, Region 2.
[FR Doc. 2017-19453 Filed 9-13-17; 8:45 am]
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