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]
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(8): Difference between Competitive Products total revenues and attributable costs (line 3 less line 6).
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(11): Total assumed Federal income tax as calculated under 39 CFR 3060.40.
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[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:
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FY 20xx–1
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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 https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be 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
https://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?
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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)
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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.
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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
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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 https://
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
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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 https://
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
https://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:
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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.
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PM2.s annual average: 0.3 uglm3
PM2.s 24-hr average: 1.2 uglm3
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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
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(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: https://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).
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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)
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IV. How has the state addressed
elements of the CAA Section 110(a)(1)
and (2) ‘‘infrastructure’’ provisions?
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§ 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
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(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
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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.
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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 https://www.dec.ny.gov/chemical/34985.html.
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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 https://
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
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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 https://
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: https://
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
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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
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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 https://
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 https://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 https://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
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]]>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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be 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 https://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 https://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 https://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 https://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: https://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.
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\1\ 80 FR 30939 (June 1, 2015).
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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.
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\2\ https://www.dec.ny.gov/chemical/34985.html.
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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 https://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
