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, 63448-63454 [2016-22238]

Download as PDF 63448 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Proposed Rules TABLE 1—COMPETITIVE PRODUCTS INCOME STATEMENT—PRC FORM CP–01—Continued [$ in 000s] FY 20xx Line Line Line Line Line Line Line Line Percent change from SPLY Percent change from SPLY (5): Total Competitive Products product-specific costs as shown in the CRA report. (6): Inframarginal costs calculated as part of total Competitive Products incremental costs. (7): Sum total of Competitive Products costs (sum of lines 4, 5, and 6). (8): Difference between Competitive Products total revenues and attributable costs (line 3 less line 6). (9): Minimum amount of Institutional cost contribution required under 39 CFR 3015.7 of this chapter. (10): Line 8 less line 9. (11): Total assumed Federal income tax as calculated under 39 CFR 3060.40. (12): Line 10 less line 11. [FR Doc. 2016–22162 Filed 9–14–16; 8:45 am] BILLING CODE 7710–FW–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R02–OAR–2016–0478; FRL–9952–49– 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 Environmental Protection Agency. ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing 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. 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) which will make the SIP consistent with existing federal requirements. The EPA is also proposing 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 SUMMARY: rmajette on DSK2TPTVN1PROD with PROPOSALS FY 20xx–1 VerDate Sep<11>2014 14:41 Sep 14, 2016 Jkt 238001 lead (Pb), 2008 ozone, and 2010 sulfur dioxide (SO2) national ambient air quality standards (NAAQS). DATES: Comments must be received on or before October 17, 2016. ADDRESSES: Submit your comments, identified by Docket ID number EPA– R02–OAR–2016–0478, 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: Frank Jon, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007–1866, (212) 637–4085; email address: jon.frank@epa.gov. 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 being addressed in this document? II. What is the background for this action? PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 III. What is EPA’s analysis of New York’s NSR rule revisions? IV. How has the State addressed elements of the Section 110(a)(1) and (2) ‘‘infrastructure’’ provisions? V. What action is EPA proposing to take? VI. Incorporation by Reference VII. Statutory and Executive Order Reviews. I. What is being addressed in this document? 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. This proposed 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. The EPA is also proposing to approve certain elements of New York SIP revisions as meeting CAA section 110(a) E:\FR\FM\15SEP1.SGM 15SEP1 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Proposed Rules 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; for the 2008 ozone NAAQS on April 4, 2013; and for the 2010 SO2 NAAQS on October 3, 2013. rmajette on DSK2TPTVN1PROD with PROPOSALS II. What is the background for this action? On November 17, 2010, EPA granted a partial approval to revisions of the New York SIP for 6 NYCRR Parts 200, 201 and Part 231 submitted by the NYSDEC on March 3, 2009. 75 FR 70140. This partial approval was issued with the caveat that EPA was taking no action at the time on (1) the PSD permitting threshold provisions to the extent that those provisions may require permits for sources of GHG emissions that equal or exceed the 100/250 tons per year (tpy) GHG levels but are less than the thresholds identified in EPA’s final Tailoring Rule at 75 FR 31514, 31606 (June 3, 2010); and (2) the PSD significance level provisions of New York’s rule to the extent that those provisions may treat as significant GHG emissions increases that are less than the thresholds identified in the final Tailoring Rule. Id. We granted partial approval, in part, because in its August 11, 2010 letter to EPA, New York State confirmed to us that they have authority to regulate GHGs without any additional rulemaking or other administrative action. Subsequently, on October 12, 2011 New York submitted a SIP revision request which makes New York’s authority to regulate GHG more explicit in the regulation itself. In addition, New York’s SIP revision request addresses additional PM2.5 requirements that were not included in the November 17, 2010 EPA SIP approval. 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 new rolling 3-month average NAAQS for Pb, which is 0.15 micrograms per cubic meter of air (mg/m3) maximum not to be exceeded. On March 27, 2008 (73 FR 16436), EPA revised the level of the 8hour 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 VerDate Sep<11>2014 14:41 Sep 14, 2016 Jkt 238001 average of the annual 99th percentile of 1-hour daily maximum concentrations. This proposed 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). EPA had previously approved most elements of New York’s infrastructure SIP for the 2008 Pb NAAQS as fully meeting the requirements of section 110(a). See, EPA’s final rule ‘‘Approval and Promulgation of Implementation Plans; New York; Infrastructure SIP for the 2008 Lead NAAQS,’’ 80 FR 30939 (June 1, 2015). However, EPA had deferred taking final action on the lead SIP with respect to 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J) elements until EPA approved, or simultaneously approved, PM2.5 requirements for New York’s PSD program. EPA will address the other elements of the infrastructure SIPs for the 2008 ozone, and 2010 SO2 NAAQs in another action. EPA’s general approach to the review of infrastructure SIP submittals can be found in the December 15, 2014 (79 FR 74046) proposal to approve New York’s 2008 Pb infrastructure SIP, and will not be repeated here. Both the proposed rule and final rules for the 2008 Pb NAAQS can also be found in the docket of this rulemaking. III. What is EPA’s analysis of New York’s NSR rule revisions? A number of developments have arisen since EPA’s receipt of the SIP revision package that has affected EPA’s review of the 6 NYCRR Part 231 SIP revision. These developments are: (a) On July 21, 2011, then Assistant Administrator Gina McCarthy issued a memorandum entitled ‘‘Revised Policy to Address Reconsideration of Interpollutant Trading Provisions for Fine Particles (PM2.5).’’ See http:// www.epa.gov/sites/production/files/ 2015–07/documents/pm25trade.pdf. The memorandum stated that under the EPA’s revised policy, the interpollutant ratios contained in the preamble to the 2008 final rule will no longer carry an EPA presumptive approval status. Accordingly, if a state wishes to implement interpollutant trading, the state will be expected to develop its own separate PM2.5 precursor offset ratios that are demonstrated to be suitable for addressing the particular precursor’s relationship with ambient PM2.5 concentrations for 24-hour and annual averaging periods that are causing violations in that nonattainment area. Therefore, since New York has not conducted and included such a PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 63449 demonstration for the PM2.5 precursor offset ratios in the Part 231 SIP submittal, these offset ratios cannot presumptively be approved into the SIP. (b) On January 22, 2013, the United States Court of Appeals for the District of Columbia granted an EPA request to vacate and remand to the EPA portions of two PSD regulations, promulgated in 2010. These two regulatory provisions are the Significant Impact Levels (SILs) for PM2.5 promulgated under 40 CFR 52.21(k)(2) and 40 CFR 51.166(k)(2) and the PM2.5 Significant Monitoring Concentration (SMC) promulgated under 40 CFR 52.21(i)(5)(i)(c) and 40 CFR 51.166(i)(5)(i)(c). On December 9, 2013, the EPA issued a final rule vacating these two elements and subsequently issued interim guidance on May 20, 2014 entitled ‘‘Guidance for PM2.5 Permit Modeling.’’ See http:// www3.epa.gov/ttn/scram/guidance/ guide/Guidance_for_PM25_Permit_ Modeling.pdf. The EPA is currently drafting regulatory changes to address these two aspects of the PSD rule. (c) On June 23, 2014, the Supreme Court of the United States issued a decision addressing the application of stationary source permitting requirements to greenhouse gases. Utility Air Regulatory Group (UARG) v. Environmental Protection Agency, 134 S.Ct. 2427 (2014) In this decision, the Supreme Court said that the EPA may not treat greenhouse gases as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD or title V permit. The Supreme Court also said that the EPA could continue to require that PSD permits otherwise required, based on emissions of conventional pollutants, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). See the EPA guidance dated December 19, 2014 on this topic at http://www.epa.gov/sites/production/ files/2015–07/documents/ 201412step2.pdf. In light of the above developments, the NYSDEC on July 28, 2016 requested the EPA to withdraw specific regulatory language that deals with the above provisions from the SIP submittal. Removal of the above provisions from the SIP submittal request is appropriate since EPA has or is in the process of developing additional guidance/ regulations that will address the above issues with a timetable as to when the SIP revisions are due from the States to EPA. The specific provisions of 6 NYCRR Parts 201 and 231 that New York has asked the EPA to be withdrawn are: E:\FR\FM\15SEP1.SGM 15SEP1 63450 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Proposed Rules 1) PM2.5 Inter-pollutant trading provisions codified in both 6 NYCRR 231-5.5 (b)(3) and 231-6.6 (b )(3) as follows: An emission offset ofPM-2.5 (including its precursors S0 2 and NOx) must at least equal (offset ratio of one to one or greater) the corresponding facility potential to emit or project emission potential of the same pollutant (subsequent to application ofLAER), as appropriate, by the applicable offset ratio specified in Subpart 231-13 of this Part. A greater offset ratio may be required to provide a net air quality benefit as set forth in this section. Inter-pollutant trading may be used (or offsetting direct emissions ofPM-2. 5 (including its precursors SOl and NOx). Inter-pollutant offset ratios are as follows: one ton PM-2.5 offsets 200 tons NOx. one ton PM-2.5 offsets 40 tons SOl, 200 tons NOx offsets one ton PM2.5 and 40 tons SOl offsets one ton PM-2.5. The use ofNOx and sol to offset one another is not allowed. NYSDEC has withdrawn the bold and underlined portion. 2) 231-10.1(d)- General Provisions for Emission Reduction Credits (ERCs) An ERC, to be used as an offset, must be the same regulated NSR contaminant as the emission increase requiring the ERC, except (or PM-2. 5. An ERC ofPM-2. 5 (including its precursors SOz and NOx) may be used as an offset (or direct emissions ofPM-2.5. In addition, direct emissions ofPM-2.5 can be used to offset emission o(its precursors. These emission offsets must follow the ratio requirements ofsection 231-5.5(b)(3) and 231-6.6(b)(3) o(this Part. NYSDEC has withdrawn the bold and underlined portion. 3) 231-12.4(a)(1) Exemption and waiver from onsite (i.e., site specific) air quality monitoring 3 PM2.s ------------------------------------- 4uglm , 24-hr average; NYSDEC has withdrawn this PM2.5 Significant Monitoring Concentration (SMC) value of 4 ug/m 3 from the New York SIP submission and has temporarily replaced with a value of 0 (zero) until regulatory changes are made. 4) 231-12.7 Significant impact levels for facilities located in attainment areas. Specifically, forPM2.s NYSDEC has withdrawn these PM2.5 SILs. VerDate Sep<11>2014 14:41 Sep 14, 2016 Jkt 238001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4725 E:\FR\FM\15SEP1.SGM 15SEP1 EP15SE16.007</GPH> rmajette on DSK2TPTVN1PROD with PROPOSALS PM2.s annual average: 0.3 uglm3 PM2.s 24-hr average: 1.2 uglm3 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Proposed Rules New York’s submittals demonstrate how the State, where applicable, has a plan in place that meets the requirements of CAA Section 110 for certain elements for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS. The plans reference the current New York SIP, the New York Codes of Rules and Regulations (NYCRR), the New York Environmental Conservation Law (ECL) and the New York Public Officer’s Law VerDate Sep<11>2014 14:41 Sep 14, 2016 Jkt 238001 (POL). The NYCRR, ECL and POL referenced in the submittal are publicly available. New York’s SIP can be found at 40 CFR 52.1670 and is posted on the Internet at: http://www.epa.gov/ region02/air/sip/ny_reg.htm. As discussed in the following sections, EPA has reviewed and evaluated elements and sub-elements of New York’s Infrastructure SIPs for 2008 Pb, 2008 Ozone, and 2010 SO2 for CAA Section 110(a)(2)(C); 110 (a)(2)(D)(i)(II) [PSD (Prong 3)]; and 110(a)(2)(J). PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 Element 110(a)(2)(C): Program for Enforcement of Control Measures Section 110(a)(2)(C) requires states to have a plan that includes a program providing for enforcement of all SIP measures and the regulation of the modification and construction of any stationary source, including a program to meet PSD of Air Quality and minor source new source review. New York’s Infrastructure SIP submittals for 2008 Pb, 2008 ozone and 2010 SO2 NAAQS reference New York’s Environmental Conservation Law (ECL) E:\FR\FM\15SEP1.SGM 15SEP1 EP15SE16.008</GPH> rmajette on DSK2TPTVN1PROD with PROPOSALS IV. How has the state addressed elements of the CAA Section 110(a)(1) and (2) ‘‘infrastructure’’ provisions? 63451 rmajette on DSK2TPTVN1PROD with PROPOSALS 63452 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Proposed Rules § 19–0305, which provides New York with the authority for the enforcement of all control measures that have been adopted into the SIP. New York also references the State’s PSD and Nonattainment New Source Review (NNSR) permitting program contained in 6 NYCRR Part 231, ‘‘New Source Review for New and Modified Facilities,’’ and the State’s permitting program contained in 6 NYCRR 201, ‘‘Permits and Certificates.’’ EPA approved New York’s PSD and NNSR program into the SIP on November 17, 2010 (75 FR 70140). New York’s minor new source review program is also regulated under Part 201. EPA has reviewed and evaluated New York’s Infrastructure SIP for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS with respect to the requirements of element C. EPA concludes that the State has adequate authority and regulations to ensure that SIP-approved control measures are enforced for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS. Under § 19–0311 of the ECL, New York has the authority to establish a permitting program. New York’s SIPapproved program under Part 231 includes both PSD permitting requirements, which regulate major sources in attainment areas, and Nonattainment New Source Review requirements, which regulate major sources located in nonattainment areas. New York’s Part 231 includes permitting requirements for Pb, SO2 and the precursors of ozone (i.e., nitrogen oxides and volatile organic compounds). New York’s permitting regulations are set forth in 6 NYCRR Part 201, ‘‘Permits and Certificates.’’ Major sources of air pollution are covered by State Facility permits (Subpart 201–5) and Title V permits (Subpart 201- 6). In addition, New York has implemented a permitting program for minor sources of air pollution; these sources are covered by minor facility registrations (6 NYCRR Subpart 201–4). New York’s program ensures that all applicable PSD requirements are included in PSD permits and are incorporated into title V operating permits, and that all federallyenforceable requirements are applied and enforced. The State’s PSD permitting requirements in Part 231 regulate Pb, SO2, and the precursors of ozone. The PSD portion of Part 231 regulates the construction of proposed new or modified facilities that are required to demonstrate in their permit application that allowable emission increases from the facilities, in conjunction with all other applicable emission increases or reductions VerDate Sep<11>2014 14:41 Sep 14, 2016 Jkt 238001 (including secondary emissions), would not, among other things, cause or significantly contribute to air pollution in violation of any NAAQS or increment in any air quality control region. Since Pb, SO2, and ozone are NAAQS, the PSD provisions of Part 231 are applicable. Section 110(a)(2)(C) is applicable to all NSR pollutants subject to regulation under the CAA. See, e.g., CAA section 165(a)(4). As mentioned in section II, above, and as further described in EPA’s final rule approving elements of the New York Lead Infrastructure SIP,1 EPA had deferred taking final action approving 110(a)(2)(C) (as well as 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J)) until EPA approved, or simultaneously approved, PM2.5 requirements for New York’s PSD program. Because the scope of 110(a)(2)(C) is comprehensive (covering all pollutants subject to regulation under the CAA, including GHG), a fully approved comprehensive PSD program addressing all regulated NSR pollutants is needed in order to approve the infrastructure SIP for any one pollutant. As described in section III of this rulemaking, the NYSDEC has requested to withdraw specific language from its SIP submittal that had affected EPA’s review of the 6 NYCRR Part 231 SIP revision. Upon final approval of the revisions to 6 NYCRR Part 231 into the SIP, New York will have addressed all regulated pollutants. EPA proposes to find that the State has adequate authority and regulations to ensure the enforcement of emission limits and control measures for the 2008 Pb, 2010 SO2 and 2008 ozone NAAQS. EPA also proposes to find that New York has met the requirements of 110(a)(2)(C) regarding regulation of minor sources and minor modifications for the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS. Sub-Element 110(a)(2)(D)(i)(II) Prong 3: Interstate Transport, PSD Section 110(a)(2)(D) of the Clean Air Act is divided into two subsections: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The first of these, 110(a)(2)(D)(i), in turn, contains four ‘‘prongs’’ the first two of which appear in 110(a)(2)(D)(i)(I) and the second two of which appear in 110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) require New York’s SIP to contain adequate provisions prohibiting any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will contribute significantly to nonattainment in any other state with respect to any primary or secondary 1 80 PO 00000 FR 30939 (June 1, 2015). Frm 00025 Fmt 4702 Sfmt 4702 NAAQS (prong 1), or interfere with maintenance by any other state with respect to any primary or secondary NAAQS (prong 2). The two prongs in 110(a)(2)(D)(i)(II) prohibit any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). Subsection 110(a)(2)(D)(ii) addresses interstate and international pollution abatement, and requires SIPs to include provisions insuring compliance with sections 115 and 126 of the CAA, relating to interstate and international pollution abatement. In this action, EPA is proposing to approve 110(a)(2)(D)(i)(II)(prong 3) for the 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. EPA has previously taken action on 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for 2008 Pb. EPA has proposed action on 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for the 2008 ozone NAAQS, and will finalize in a separate rulemaking. EPA will also address 110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for the 2010 SO2 NAAQS in a separate rulemaking. To satisfy section 110(a)(2)(D)(i)(II), prong 3, New York relies on its PSD program to prevent significant deterioration of air quality within other states. New York has affirmed that the program remains in effect and continues to apply for 2008 Pb, 2008 ozone, and 2010 SO2. As discussed in the preceding section regarding 110(a)(2)(C), a state’s PSD program must address all pollutants subject to regulation under the CAA. Upon final approval into the SIP of this proposed approval of the revisions to 6 NYCRR Part 231, New York will have addressed all regulated pollutants. Element 110(a)(2)(J) Consultation With Government Officials, Public Notification, PSD, and Visibility Section 110(a)(2)(J) requires states to have a plan that meets the applicable requirements of CAA section 121 (relating to consultation), section 127 (relating to public notification), and part C (relating to significant deterioration and visibility protection). Section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to section 121 relating to consultation. E:\FR\FM\15SEP1.SGM 15SEP1 rmajette on DSK2TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Proposed Rules In December 2006, New York established a SIP Coordinating Council consisting of senior policy representatives from 19 state agencies and authorities, as well as a SIP Task Force consisting of officials from 37 local governments and designated organizations of elected officials. New York has also participated in the consultation process for Regional Haze (40 CFR 51.308). EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J) for consultation with government officials for 2008 Pb, 2008 ozone, and 2010 SO2. Section 110(a)(2)(J) further requires states to notify the public if the NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. New York maintains an Air Quality Web site 2 for reporting daily air quality to the public, including current air quality status, air quality forecasts, monitoring information, reports and pollutant health effects related to air quality readings. New York posts warnings on the above-referenced Web site and issues press releases to local media outlets if dangerous conditions are expected to occur. In the case of a predicted or forecasted air quality exceedance, the public is urged to follow energy-saving and pollutionreducing steps such as limiting the use of appliances and carpooling. EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J) for public notification for 2008 Pb, 2008 ozone, and 2010 SO2. Section 110(a)(2)(J) also requires states to meet applicable requirements of Part C related to PSD and visibility protection. The approvability of a state’s PSD program in its entirety is essential to approvability of the PSD portion of this element. As discussed previously concerning approvability of 110(a)(2)(C) and 110(a)(2)(D)(i)(II) prong 3, a state’s PSD program must address all NSR pollutants subject to regulation under the CAA. Upon final approval into the SIP of this proposed approval of the revisions to 6 NYCRR Part 231, New York will have addressed all regulated pollutants for PSD. With respect to the visibility component of 110(a)(2)(J), EPA believes that the visibility protection requirements are not ‘‘applicable requirements’’ within the meaning of section 110(a)(2)(J) and that the SIP is not required to be revised with respect to visibility protection merely due to promulgation of, or revision to, these NAAQS. Regardless, New York 2 http://www.dec.ny.gov/chemical/34985.html. VerDate Sep<11>2014 14:41 Sep 14, 2016 Jkt 238001 submitted and EPA approved New York’s Regional Haze SIP. 77 FR 51915 (Aug. 28, 2012). EPA proposes to find that the 110(a) submittals from New York meet the requirements of 110(a)(2)(J), for PSD, for 2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. V. What action is EPA proposing to take? As requested by New York, EPA is proposing to withdraw the above specified regulatory sections of 6 NYCRR Parts 201 and 231 from EPA’s review of the SIP submittal. EPA is proposing to approve into the SIP the remaining revisions to 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231 which became effective under NYS law on October 15, 2011, and were submitted by the State of New York to EPA on October 12, 2011. Specifically, EPA is proposing to approve the remaining revisions of subparts 200.1 and 200.9, as effective on October 15, 2011, and subpart 201–2, as effective October 15, 2011. EPA is also proposing to approve the remaining revisions to 6 NYCRR Part 231, as effective on October 15, 2011. EPA is also proposing to approve New York’s infrastructure SIP submittals for 2008 Pb, 2008 ozone, and 2010 SO2 for 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). VI. Incorporation by Reference In this rule, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are proposing to incorporate by reference revised versions of 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231, which were discussed in section III above, and became effective under NYS law on October 15, 2011, and were submitted by the State of New York to EPA on October 12, 2011. The 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). VII. 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 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 63453 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 (Public Law 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 (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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate E:\FR\FM\15SEP1.SGM 15SEP1 63454 Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / Proposed Rules document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R8–ES–2016– 0078, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041–3803. We request that you send comments only by the methods described above. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information). matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: September 6, 2016. Judith A. Enck, Regional Administrator, Region 2. [FR Doc. 2016–22238 Filed 9–14–16; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 FOR FURTHER INFORMATION CONTACT: [Docket No. FWS–R8–ES–2016–0078; 4500030113] RIN 1018–BB64 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Chorizanthe parryi var. fernandina (San Fernando Valley Spineflower) Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: rmajette on DSK2TPTVN1PROD with PROPOSALS Information Requested We, the U.S. Fish and Wildlife Service (Service), propose to list Chorizanthe parryi var. fernandina (San Fernando Valley spineflower), a plant species from southern California, as a threatened species under the Endangered Species Act of 1973, as amended (Act). If we finalize this rule as proposed, it would extend the Act’s protections to this species. This document also serves as the 90-day and 12-month findings on two petitions to list C. parryi var. fernandina as an endangered species. DATES: We will accept comments received or postmarked on or before November 14, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by October 31, 2016. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, enter FWS–R8–ES–2016–0078, which is the docket number for this rulemaking. Then click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this SUMMARY: VerDate Sep<11>2014 14:41 Sep 14, 2016 Jkt 238001 Stephen P. Henry, Field Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93001; telephone 805–644–1766; facsimile 805–644–3958. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: Public Comments We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) Chorizanthe parryi var. fernandina’s biology, range, and population trends, including: (a) Biological or ecological requirements of the plant (b) Genetics and taxonomy; (c) Historical and current range, including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the plant, its habitat, or both. (2) Factors that may affect the continued existence of the plant, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors. (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this plant and PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 existing regulations that may be addressing those threats. (4) Additional information concerning the historical and current status, range, distribution, and population size of Chorizanthe parryi var. fernandina, including the locations of any additional populations of this plant. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is an endangered or threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described above in ADDRESSES. If you submit information via http:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Public Hearing Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified above in DATES. Such requests must be sent to the address shown above in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal E:\FR\FM\15SEP1.SGM 15SEP1

Agencies

[Federal Register Volume 81, Number 179 (Thursday, September 15, 2016)]
[Proposed Rules]
[Pages 63448-63454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22238]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2016-0478; FRL-9952-49-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: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 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. 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) which will make the SIP consistent with existing 
federal requirements. The EPA is also proposing 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: Comments must be received on or before October 17, 2016.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2016-0478, 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: Frank Jon, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4085; email address: jon.frank@epa.gov.

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 being addressed in this document?
II. What is the background for this action?
III. What is EPA's analysis of New York's NSR rule revisions?
IV. How has the State addressed elements of the Section 110(a)(1) 
and (2) ``infrastructure'' provisions?
V. What action is EPA proposing to take?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews.

I. What is being addressed in this document?

    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. This proposed 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.
    The EPA is also proposing to approve certain elements of New York 
SIP revisions as meeting CAA section 110(a)

[[Page 63449]]

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; for the 2008 ozone NAAQS on 
April 4, 2013; and for the 2010 SO2 NAAQS on October 3, 
2013.

II. What is the background for this action?

    On November 17, 2010, EPA granted a partial approval to revisions 
of the New York SIP for 6 NYCRR Parts 200, 201 and Part 231 submitted 
by the NYSDEC on March 3, 2009. 75 FR 70140. This partial approval was 
issued with the caveat that EPA was taking no action at the time on (1) 
the PSD permitting threshold provisions to the extent that those 
provisions may require permits for sources of GHG emissions that equal 
or exceed the 100/250 tons per year (tpy) GHG levels but are less than 
the thresholds identified in EPA's final Tailoring Rule at 75 FR 31514, 
31606 (June 3, 2010); and (2) the PSD significance level provisions of 
New York's rule to the extent that those provisions may treat as 
significant GHG emissions increases that are less than the thresholds 
identified in the final Tailoring Rule. Id. We granted partial 
approval, in part, because in its August 11, 2010 letter to EPA, New 
York State confirmed to us that they have authority to regulate GHGs 
without any additional rulemaking or other administrative action. 
Subsequently, on October 12, 2011 New York submitted a SIP revision 
request which makes New York's authority to regulate GHG more explicit 
in the regulation itself. In addition, New York's SIP revision request 
addresses additional PM2.5 requirements that were not 
included in the November 17, 2010 EPA SIP approval.
    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 new 
rolling 3-month average NAAQS for Pb, which is 0.15 micrograms per 
cubic meter of air ([micro]g/m\3\) maximum not to be exceeded. 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 proposed 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). EPA had previously 
approved most elements of New York's infrastructure SIP for the 2008 Pb 
NAAQS as fully meeting the requirements of section 110(a). See, EPA's 
final rule ``Approval and Promulgation of Implementation Plans; New 
York; Infrastructure SIP for the 2008 Lead NAAQS,'' 80 FR 30939 (June 
1, 2015). However, EPA had deferred taking final action on the lead SIP 
with respect to 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 
110(a)(2)(J) elements until EPA approved, or simultaneously approved, 
PM2.5 requirements for New York's PSD program. EPA will 
address the other elements of the infrastructure SIPs for the 2008 
ozone, and 2010 SO2 NAAQs in another action.
    EPA's general approach to the review of infrastructure SIP 
submittals can be found in the December 15, 2014 (79 FR 74046) proposal 
to approve New York's 2008 Pb infrastructure SIP, and will not be 
repeated here. Both the proposed rule and final rules for the 2008 Pb 
NAAQS can also be found in the docket of this rulemaking.

III. What is EPA's analysis of New York's NSR rule revisions?

    A number of developments have arisen since EPA's receipt of the SIP 
revision package that has affected EPA's review of the 6 NYCRR Part 231 
SIP revision. These developments are:
    (a) On July 21, 2011, then Assistant Administrator Gina McCarthy 
issued a memorandum entitled ``Revised Policy to Address 
Reconsideration of Interpollutant Trading Provisions for Fine Particles 
(PM2.5).'' See http://www.epa.gov/sites/production/files/2015-07/documents/pm25trade.pdf. The memorandum stated that under the 
EPA's revised policy, the interpollutant ratios contained in the 
preamble to the 2008 final rule will no longer carry an EPA presumptive 
approval status. Accordingly, if a state wishes to implement 
interpollutant trading, the state will be expected to develop its own 
separate PM2.5 precursor offset ratios that are demonstrated 
to be suitable for addressing the particular precursor's relationship 
with ambient PM2.5 concentrations for 24-hour and annual 
averaging periods that are causing violations in that nonattainment 
area. Therefore, since New York has not conducted and included such a 
demonstration for the PM2.5 precursor offset ratios in the 
Part 231 SIP submittal, these offset ratios cannot presumptively be 
approved into the SIP.
    (b) On January 22, 2013, the United States Court of Appeals for the 
District of Columbia granted an EPA request to vacate and remand to the 
EPA portions of two PSD regulations, promulgated in 2010. These two 
regulatory provisions are the Significant Impact Levels (SILs) for 
PM2.5 promulgated under 40 CFR 52.21(k)(2) and 40 CFR 
51.166(k)(2) and the PM2.5 Significant Monitoring 
Concentration (SMC) promulgated under 40 CFR 52.21(i)(5)(i)(c) and 40 
CFR 51.166(i)(5)(i)(c). On December 9, 2013, the EPA issued a final 
rule vacating these two elements and subsequently issued interim 
guidance on May 20, 2014 entitled ``Guidance for PM2.5 
Permit Modeling.'' See http://www3.epa.gov/ttn/scram/guidance/guide/Guidance_for_PM25_Permit_Modeling.pdf. The EPA is currently drafting 
regulatory changes to address these two aspects of the PSD rule.
    (c) On June 23, 2014, the Supreme Court of the United States issued 
a decision addressing the application of stationary source permitting 
requirements to greenhouse gases. Utility Air Regulatory Group (UARG) 
v. Environmental Protection Agency, 134 S.Ct. 2427 (2014) In this 
decision, the Supreme Court said that the EPA may not treat greenhouse 
gases as an air pollutant for purposes of determining whether a source 
is a major source required to obtain a PSD or title V permit. The 
Supreme Court also said that the EPA could continue to require that PSD 
permits otherwise required, based on emissions of conventional 
pollutants, contain limitations on GHG emissions based on the 
application of Best Available Control Technology (BACT). See the EPA 
guidance dated December 19, 2014 on this topic at http://www.epa.gov/sites/production/files/2015-07/documents/201412step2.pdf.
    In light of the above developments, the NYSDEC on July 28, 2016 
requested the EPA to withdraw specific regulatory language that deals 
with the above provisions from the SIP submittal. Removal of the above 
provisions from the SIP submittal request is appropriate since EPA has 
or is in the process of developing additional guidance/regulations that 
will address the above issues with a timetable as to when the SIP 
revisions are due from the States to EPA. The specific provisions of 6 
NYCRR Parts 201 and 231 that New York has asked the EPA to be withdrawn 
are:

[[Page 63450]]

[GRAPHIC] [TIFF OMITTED] TP15SE16.007


[[Page 63451]]


[GRAPHIC] [TIFF OMITTED] TP15SE16.008

IV. How has the state addressed elements of the CAA Section 110(a)(1) 
and (2) ``infrastructure'' provisions?

    New York's submittals demonstrate how the State, where applicable, 
has a plan in place that meets the requirements of CAA Section 110 for 
certain elements for the 2008 Pb, 2008 ozone and 2010 SO2 
NAAQS. The plans reference the current New York SIP, the New York Codes 
of Rules and Regulations (NYCRR), the New York Environmental 
Conservation Law (ECL) and the New York Public Officer's Law (POL). The 
NYCRR, ECL and POL referenced in the submittal are publicly available. 
New York's SIP can be found at 40 CFR 52.1670 and is posted on the 
Internet at: http://www.epa.gov/region02/air/sip/ny_reg.htm.
    As discussed in the following sections, EPA has reviewed and 
evaluated elements and sub-elements of New York's Infrastructure SIPs 
for 2008 Pb, 2008 Ozone, and 2010 SO2 for CAA Section 
110(a)(2)(C); 110 (a)(2)(D)(i)(II) [PSD (Prong 3)]; and 110(a)(2)(J).

Element 110(a)(2)(C): Program for Enforcement of Control Measures

    Section 110(a)(2)(C) requires states to have a plan that includes a 
program providing for enforcement of all SIP measures and the 
regulation of the modification and construction of any stationary 
source, including a program to meet PSD of Air Quality and minor source 
new source review.
    New York's Infrastructure SIP submittals for 2008 Pb, 2008 ozone 
and 2010 SO2 NAAQS reference New York's Environmental 
Conservation Law (ECL)

[[Page 63452]]

Sec.  19-0305, which provides New York with the authority for the 
enforcement of all control measures that have been adopted into the 
SIP. New York also references the State's PSD and Nonattainment New 
Source Review (NNSR) permitting program contained in 6 NYCRR Part 231, 
``New Source Review for New and Modified Facilities,'' and the State's 
permitting program contained in 6 NYCRR 201, ``Permits and 
Certificates.'' EPA approved New York's PSD and NNSR program into the 
SIP on November 17, 2010 (75 FR 70140). New York's minor new source 
review program is also regulated under Part 201.
    EPA has reviewed and evaluated New York's Infrastructure SIP for 
the 2008 Pb, 2008 ozone and 2010 SO2 NAAQS with respect to 
the requirements of element C.
    EPA concludes that the State has adequate authority and regulations 
to ensure that SIP-approved control measures are enforced for the 2008 
Pb, 2008 ozone and 2010 SO2 NAAQS. Under Sec.  19-0311 of 
the ECL, New York has the authority to establish a permitting program. 
New York's SIP-approved program under Part 231 includes both PSD 
permitting requirements, which regulate major sources in attainment 
areas, and Nonattainment New Source Review requirements, which regulate 
major sources located in nonattainment areas. New York's Part 231 
includes permitting requirements for Pb, SO2 and the 
precursors of ozone (i.e., nitrogen oxides and volatile organic 
compounds). New York's permitting regulations are set forth in 6 NYCRR 
Part 201, ``Permits and Certificates.'' Major sources of air pollution 
are covered by State Facility permits (Subpart 201-5) and Title V 
permits (Subpart 201- 6). In addition, New York has implemented a 
permitting program for minor sources of air pollution; these sources 
are covered by minor facility registrations (6 NYCRR Subpart 201-4).
    New York's program ensures that all applicable PSD requirements are 
included in PSD permits and are incorporated into title V operating 
permits, and that all federally-enforceable requirements are applied 
and enforced. The State's PSD permitting requirements in Part 231 
regulate Pb, SO2, and the precursors of ozone. The PSD 
portion of Part 231 regulates the construction of proposed new or 
modified facilities that are required to demonstrate in their permit 
application that allowable emission increases from the facilities, in 
conjunction with all other applicable emission increases or reductions 
(including secondary emissions), would not, among other things, cause 
or significantly contribute to air pollution in violation of any NAAQS 
or increment in any air quality control region. Since Pb, 
SO2, and ozone are NAAQS, the PSD provisions of Part 231 are 
applicable.
    Section 110(a)(2)(C) is applicable to all NSR pollutants subject to 
regulation under the CAA. See, e.g., CAA section 165(a)(4). As 
mentioned in section II, above, and as further described in EPA's final 
rule approving elements of the New York Lead Infrastructure SIP,\1\ EPA 
had deferred taking final action approving 110(a)(2)(C) (as well as 
110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J)) until EPA approved, or 
simultaneously approved, PM2.5 requirements for New York's 
PSD program. Because the scope of 110(a)(2)(C) is comprehensive 
(covering all pollutants subject to regulation under the CAA, including 
GHG), a fully approved comprehensive PSD program addressing all 
regulated NSR pollutants is needed in order to approve the 
infrastructure SIP for any one pollutant. As described in section III 
of this rulemaking, the NYSDEC has requested to withdraw specific 
language from its SIP submittal that had affected EPA's review of the 6 
NYCRR Part 231 SIP revision. Upon final approval of the revisions to 6 
NYCRR Part 231 into the SIP, New York will have addressed all regulated 
pollutants.
---------------------------------------------------------------------------

    \1\ 80 FR 30939 (June 1, 2015).
---------------------------------------------------------------------------

    EPA proposes to find that the State has adequate authority and 
regulations to ensure the enforcement of emission limits and control 
measures for the 2008 Pb, 2010 SO2 and 2008 ozone NAAQS. EPA 
also proposes to find that New York has met the requirements of 
110(a)(2)(C) regarding regulation of minor sources and minor 
modifications for the 2008 Pb, 2008 ozone and 2010 SO2 
NAAQS.

Sub-Element 110(a)(2)(D)(i)(II) Prong 3: Interstate Transport, PSD

    Section 110(a)(2)(D) of the Clean Air Act is divided into two 
subsections: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The first of these, 
110(a)(2)(D)(i), in turn, contains four ``prongs'' the first two of 
which appear in 110(a)(2)(D)(i)(I) and the second two of which appear 
in 110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) require 
New York's SIP to contain adequate provisions prohibiting any source or 
other type of emissions activity within the State from emitting any air 
pollutants in amounts which will contribute significantly to 
nonattainment in any other state with respect to any primary or 
secondary NAAQS (prong 1), or interfere with maintenance by any other 
state with respect to any primary or secondary NAAQS (prong 2). The two 
prongs in 110(a)(2)(D)(i)(II) prohibit any source or other type of 
emissions activity within the State from emitting any air pollutants in 
amounts which will interfere with measures required to be included in 
the applicable implementation plan for any other state under part C to 
prevent significant deterioration of air quality (prong 3) or to 
protect visibility (prong 4). Subsection 110(a)(2)(D)(ii) addresses 
interstate and international pollution abatement, and requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
CAA, relating to interstate and international pollution abatement.
    In this action, EPA is proposing to approve 
110(a)(2)(D)(i)(II)(prong 3) for the 2008 Pb, 2008 ozone, and 2010 
SO2 NAAQS. EPA has previously taken action on 
110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for 
2008 Pb. EPA has proposed action on 110(a)(2)(D)(i)(I)(prongs 1 and 2) 
and 110(a)(2)(D)(i)(II)(prong 4) for the 2008 ozone NAAQS, and will 
finalize in a separate rulemaking. EPA will also address 
110(a)(2)(D)(i)(I)(prongs 1 and 2) and 110(a)(2)(D)(i)(II)(prong 4) for 
the 2010 SO2 NAAQS in a separate rulemaking.
    To satisfy section 110(a)(2)(D)(i)(II), prong 3, New York relies on 
its PSD program to prevent significant deterioration of air quality 
within other states. New York has affirmed that the program remains in 
effect and continues to apply for 2008 Pb, 2008 ozone, and 2010 
SO2.
    As discussed in the preceding section regarding 110(a)(2)(C), a 
state's PSD program must address all pollutants subject to regulation 
under the CAA. Upon final approval into the SIP of this proposed 
approval of the revisions to 6 NYCRR Part 231, New York will have 
addressed all regulated pollutants.

Element 110(a)(2)(J) Consultation With Government Officials, Public 
Notification, PSD, and Visibility

    Section 110(a)(2)(J) requires states to have a plan that meets the 
applicable requirements of CAA section 121 (relating to consultation), 
section 127 (relating to public notification), and part C (relating to 
significant deterioration and visibility protection).
    Section 110(a)(2)(J) requires states to provide a process for 
consultation with local governments and Federal Land Managers carrying 
out NAAQS implementation requirements pursuant to section 121 relating 
to consultation.

[[Page 63453]]

In December 2006, New York established a SIP Coordinating Council 
consisting of senior policy representatives from 19 state agencies and 
authorities, as well as a SIP Task Force consisting of officials from 
37 local governments and designated organizations of elected officials. 
New York has also participated in the consultation process for Regional 
Haze (40 CFR 51.308). EPA proposes to find that the 110(a) submittals 
from New York meet the requirements of 110(a)(2)(J) for consultation 
with government officials for 2008 Pb, 2008 ozone, and 2010 
SO2.
    Section 110(a)(2)(J) further requires states to notify the public 
if the NAAQS are exceeded in an area and to enhance public awareness of 
measures that can be taken to prevent exceedances. New York maintains 
an Air Quality Web site \2\ for reporting daily air quality to the 
public, including current air quality status, air quality forecasts, 
monitoring information, reports and pollutant health effects related to 
air quality readings. New York posts warnings on the above-referenced 
Web site and issues press releases to local media outlets if dangerous 
conditions are expected to occur. In the case of a predicted or 
forecasted air quality exceedance, the public is urged to follow 
energy-saving and pollution-reducing steps such as limiting the use of 
appliances and carpooling. EPA proposes to find that the 110(a) 
submittals from New York meet the requirements of 110(a)(2)(J) for 
public notification for 2008 Pb, 2008 ozone, and 2010 SO2.
---------------------------------------------------------------------------

    \2\ http://www.dec.ny.gov/chemical/34985.html.
---------------------------------------------------------------------------

    Section 110(a)(2)(J) also requires states to meet applicable 
requirements of Part C related to PSD and visibility protection. The 
approvability of a state's PSD program in its entirety is essential to 
approvability of the PSD portion of this element. As discussed 
previously concerning approvability of 110(a)(2)(C) and 
110(a)(2)(D)(i)(II) prong 3, a state's PSD program must address all NSR 
pollutants subject to regulation under the CAA. Upon final approval 
into the SIP of this proposed approval of the revisions to 6 NYCRR Part 
231, New York will have addressed all regulated pollutants for PSD. 
With respect to the visibility component of 110(a)(2)(J), EPA believes 
that the visibility protection requirements are not ``applicable 
requirements'' within the meaning of section 110(a)(2)(J) and that the 
SIP is not required to be revised with respect to visibility protection 
merely due to promulgation of, or revision to, these NAAQS. Regardless, 
New York submitted and EPA approved New York's Regional Haze SIP. 77 FR 
51915 (Aug. 28, 2012). EPA proposes to find that the 110(a) submittals 
from New York meet the requirements of 110(a)(2)(J), for PSD, for 2008 
Pb, 2008 ozone, and 2010 SO2 NAAQS.

V. What action is EPA proposing to take?

    As requested by New York, EPA is proposing to withdraw the above 
specified regulatory sections of 6 NYCRR Parts 201 and 231 from EPA's 
review of the SIP submittal. EPA is proposing to approve into the SIP 
the remaining revisions to 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 
NYCRR Part 231 which became effective under NYS law on October 15, 
2011, and were submitted by the State of New York to EPA on October 12, 
2011. Specifically, EPA is proposing to approve the remaining revisions 
of subparts 200.1 and 200.9, as effective on October 15, 2011, and 
subpart 201-2, as effective October 15, 2011. EPA is also proposing to 
approve the remaining revisions to 6 NYCRR Part 231, as effective on 
October 15, 2011.
    EPA is also proposing to approve New York's infrastructure SIP 
submittals for 2008 Pb, 2008 ozone, and 2010 SO2 for 
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).

VI. Incorporation by Reference

    In this rule, we are proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, we are proposing to incorporate by 
reference revised versions of 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 
NYCRR Part 231, which were discussed in section III above, and became 
effective under NYS law on October 15, 2011, and were submitted by the 
State of New York to EPA on October 12, 2011.
    The 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).

VII. 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 (Public Law 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 (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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate

[[Page 63454]]

matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: September 6, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016-22238 Filed 9-14-16; 8:45 am]
 BILLING CODE 6560-50-P