[Federal Register Volume 82, Number 177 (Thursday, September 14, 2017)]
[Proposed Rules]
[Pages 43209-43214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19453]


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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.

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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].

SUPPLEMENTARY INFORMATION: 
    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.
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    \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, 
1979).
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    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.
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    \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.
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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

[[Page 43210]]

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 
standard.
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    \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).
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    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 
manner.
    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 
documents.
     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 
cases.
     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

[[Page 43211]]

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 
regulation.
    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.

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               NY regulation                            Title                        EPA approval date
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Part 205..................................  Architectural and Industrial  12/13/04, 69 FR 72118
                                             Maintenance Coatings.
Part 211..................................  General Prohibitions........  7/12/13, 78 FR 41846
Part 212..................................  General Process Emission      7/12/13, 78 FR 41486
                                             Sources.
Part 214..................................  Byproduct Coke Oven           7/20/06, 71 FR 41163
                                             Batteries.
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
                                             Plants.
Part 223..................................  Petroleum Refineries........  7/19/85, 50 FR 29382
Part 224..................................  Sulfuric and Nitric Acid      7/19/85, 50 FR 29382
                                             Plants.
Part 226..................................  Solvent Metal Cleaning        1/23/04, 69 FR 3237
                                             Processes.
Part 227-2................................  RACT for Oxides of Nitrogen   7/12/13, 78 FR 41486
                                             (NOX).
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
                                             Transfer.
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
                                             Processes.
Part 234..................................  Graphic Arts................  3/08/12, 77 FR 13974
Part 236..................................  Synthetic Organic Chemical    7/27/93, 58 FR 40059
                                             Manufacturing Facility
                                             Component Leaks.
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    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 
address CTGs.
    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.
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    \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 
nonattainment areas.
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    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 
SIP submittal.

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

[[Page 43212]]

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 
ACTs.
    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 
NAAQS.

Simple Cycle Combustion Turbines (Firing Distillate Oil or More Than 
One Fuel)

    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 
NAAQS.
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    \6\ As measured on a dry volume basis and corrected to 15% 
oxygen.
    \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.
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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, 
2018.

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

[[Page 43213]]

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 
solvents CTG.
    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 
NOX.
    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

[[Page 43214]]

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]
 BILLING CODE 6560-50-P