Approval of Air Quality Implementation Plans; New York; Cross-State Air Pollution Rule; NOX, 57362-57367 [2017-26079]
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sent in registered First-Class Package
International Service shipments.
Stanley F. Mires,
Attorney, Federal Compliance.
[FR Doc. 2017–26143 Filed 12–4–17; 8:45 am]
BILLING CODE 7710–12–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2017–0413; FRL–9971–40–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; West
Virginia; 2015 Ozone National Ambient
Air Quality Standards; Withdrawal of
Direct Final Rule
Environmental Protection
Agency (EPA).
ACTION: Withdrawal of direct final rule.
AGENCY:
Due to receipt of adverse
comment, the Environmental Protection
Agency (EPA) is withdrawing the direct
final rule published on Monday,
October 16, 2017, to approve revisions
to the West Virginia state
implementation plan (SIP). The
revisions updated the effective date by
which the West Virginia regulations
incorporate by reference the national
ambient air quality standards (NAAQS),
additional monitoring methods, and
additional equivalent monitoring
methods.
SUMMARY:
The direct final rule published at
82 FR 47981, on October 16, 2017, is
withdrawn as of December 5, 2017.
FOR FURTHER INFORMATION CONTACT:
Joseph Schulingkamp, (215) 814–2021,
or by email at schulingkamp.joseph@
epa.gov.
DATES:
On June
13, 2017, West Virginia submitted a SIP
revision to update the State’s
incorporation by reference of federal
standards, ambient air monitoring
reference methods, and equivalent
monitoring reference methods. The SIP
revisions updated the effective date by
which the West Virginia regulations
incorporate by reference the national
ambient air quality standards (NAAQS),
additional monitoring methods, and
additional equivalent monitoring
methods. This update was intended to
add effectively the following to the West
Virginia SIP: The 2015 ozone NAAQS;
monitoring reference and equivalent
methods pertaining to fine particulate
matter (PM2.5), carbon monoxide (CO),
and coarse particulate matter (PM10); a
revised ozone monitoring season; the
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SUPPLEMENTARY INFORMATION:
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Federal Reference Method (FRM); the
Federal Equivalent Method (FEM); and
the Photochemical Assessment
Monitoring Stations (PAMS) network.
The effective date of the incorporation
by reference changed from June 1, 2013
to June 1, 2017. The SIP revision also
sought to change a reference from the
‘‘West Virginia Department of
Environmental Protection,’’ to the
‘‘Division of Air Quality.’’
In the direct final rule published on
Monday, October 16, 2017 (82 FR
47981), EPA stated that if we received
adverse comment by November 15,
2017, the rule would be withdrawn and
not take effect. EPA subsequently
received adverse comment. EPA will
address the comments received in a
subsequent final rulemaking action
based upon the proposed action, also
published on Monday, October 16, 2017
(82 FR 48033). EPA will not institute a
second comment period on this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
requiring the units to participate in
CSAPR federal trading programs for
annual emissions of nitrogen oxides
(NOX), ozone season emissions of NOX,
and annual emissions of sulfur dioxide
(SO2). This action conditionally
approves into New York’s SIP the
State’s regulations that replace the
default allowance allocation provisions
of the CSAPR federal trading programs
for annual NOX and SO2 emissions. EPA
is conditionally approving New York’s
regulations for annual NOX and SO2
emissions because, while the submitted
rules do not fully conform to CSAPR,
New York is in the process of making
further revisions to its rules and has
provided a commitment to finalize and
submit them by December 29, 2017.
Upon timely meeting of this
commitment, EPA will propose to
convert the conditional approval of the
SIP revision to a full approval.
DATES:
This rule is effective December 5,
2017.
ENVIRONMENTAL PROTECTION
AGENCY
EPA has established a
docket for this action under Docket ID
number EPA–R02–OAR–2017–0425. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information may not be publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through www.regulations.gov,
or please contact the person identified
in the FOR FURTHER INFORMATION
CONTACT section for additional
availability information.
40 CFR Part 52
FOR FURTHER INFORMATION CONTACT:
Dated: November 17, 2017.
Cosmo Servidio,
Regional Administrator, Region III.
Accordingly, the amendments to 40
CFR 52.2520(c) published on October
16, 2017 (82 FR 47981) are withdrawn
as of December 5, 2017.
■
[FR Doc. 2017–26077 Filed 12–4–17; 8:45 am]
BILLING CODE 6560–50–P
[EPA–R02–OAR–2017–0425, FRL–9971–25–
Region 2]
Approval of Air Quality Implementation
Plans; New York; Cross-State Air
Pollution Rule; NOX Annual and SO2
Group 1 Trading Programs
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is conditionally
approving a revision to the New York
State Implementation Plan (SIP)
addressing requirements of the CrossState Air Pollution Rule (CSAPR).
Under the CSAPR, large electricity
generating units in New York are subject
to Federal Implementation Plans (FIPs)
SUMMARY:
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ADDRESSES:
Kenneth Fradkin, Air Programs Branch,
Environmental Protection Agency, 290
Broadway, 25th Floor, New York, New
York 10007–1866, (212) 637–3702, or by
email at fradkin.kenneth@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA taking?
II. Background on CSAPR and CSAPRRelated SIP Revisions
III. What comments were received in
response to EPA’s proposed action?
IV. What is EPA’s conclusion?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is conditionally approving
portions of New York’s December 1,
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Federal Register / Vol. 82, No. 232 / Tuesday, December 5, 2017 / Rules and Regulations
2015 SIP submittal concerning CSAPR 1
trading programs for annual emissions
of NOX and SO2.
Large Electric Generating Units
(EGUs) in New York are subject to
CSAPR FIPs that require the units to
participate in the federal CSAPR NOX
Annual Trading Program and the federal
CSAPR SO2 Group 1 Trading Program.
CSAPR provides a process for the
submission and approval of SIP
revisions to replace certain provisions of
the CSAPR FIPs while the remaining
FIP provisions continue to apply. This
type of CSAPR SIP is termed an
abbreviated SIP. EPA proposed to
conditionally approve New York’s
submittal on August 29, 2017 (82 FR
40963).
The New York State Department of
Environmental Conservation (DEC)
amended portions of Title 6 of the New
York Codes, Rules and Regulations (6
NYCRR) in order to incorporate CSAPR
requirements into the State’s rules and
allow the DEC to allocate CSAPR
allowances to regulated entities in New
York. 6 NYCRR Part 244, ‘‘CAIR NOX
Annual Trading Program,’’ has been
repealed and replaced in its entirety
with a new rule, 6 NYCRR Part 244,
‘‘Transport Rule NOX Annual Trading
Program.’’ 6 NYCRR Part 245, ‘‘CAIR
SO2 Trading Program,’’ has also been
repealed and replaced in its entirety
with a new rule, 6 NYCRR Part 245,
‘‘Transport Rule SO2 Group 1 Trading
Program.’’ Attendant revisions were
made to 6 NYCRR Part 200, ‘‘General
Provisions,’’ to update the list of
referenced materials that are cited in the
amended New York regulations. EPA is
conditionally approving into the SIP the
revised versions of 6 NYCRR Parts 200,
244 and 245.
EPA is conditionally approving this
SIP revision, as opposed to fully
approving it, because of several
deficiencies that New York must
address. The conditional approval of
portions of New York’s SIP submittal is
conditioned on New York meeting the
commitment, articulated in its letters to
EPA dated July 14, 2016, March 4, 2017,
and July 6, 2017, to make the necessary
changes to 6 NYCRR Parts 200, 244, and
245 to meet the requirements of the
Clean Air Act (CAA) and EPA’s
regulations for approval of an
abbreviated SIP revision to replace
EPA’s default allocations of CSAPR
emission allowances with statedetermined allocations. In a July 6, 2017
letter to EPA, the DEC committed to
1 Federal Implementation Plans; Interstate
Transport of Fine Particulate Matter and Ozone and
Correction of SIP Approvals, 76 FR 48208 (August
8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and 40 CFR part 97).
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submitting a SIP revision that addresses
EPA identified deficiencies by
December 29, 2017.2 Once EPA
determines that the DEC has satisfied
these conditions and EPA approves the
revisions (after EPA notice and
comment), EPA shall remove the
conditional approval and this SIP
revision will at that time receive full
approval status. The conditionally
approved SIP submission will remain
part of the SIP until EPA takes further
action. If New York fails to meet its
commitment to submit a revised SIP by
December 29, 2017 [i.e., the date of
commitment from the state’s July 6,
2017 letter], the conditional approval
will revert to a disapproval.
This action conditionally approves
into New York’s SIP state-determined
allowance allocation procedures for
annual NOX and SO2 allowances that
would replace EPA’s default allocation
procedures for the control periods in
2017 and beyond. The conditional
approval of this SIP revision does not
alter any provision of either the CSAPR
NOX Annual Trading Program or the
CSAPR SO2 Group 1 Trading Program as
applied to New York units other than
the allowance allocation provisions, and
the FIP provisions requiring those units
to participate in the programs (as
modified by this SIP revision) remain in
place.
New York also repealed 6 NYCRR Part
243, ‘‘CAIR NOX Ozone Season Trading
Program,’’ and replaced it in its entirety
with a new rule, 6 NYCRR Part 243,
‘‘Transport Rule NOX Ozone Season
Trading Program,’’ which was included
in New York’s December 1, 2015 SIP
submittal. EPA is not acting at this time
on the portion of New York’s SIP
submittal addressing 6 NYCRR Part 243.
Since New York’s December 1, 2015
submission, EPA has finalized the
CSAPR Update rule 3 to address Eastern
states’ interstate air pollution mitigation
obligations with regard to the 2008
Ozone National Ambient Air Quality
Standard (NAAQS). Among other
things, starting in 2017 the CSAPR
Update requires New York EGUs to
participate in the new CSAPR NOX
Ozone Season Group 2 Trading Program
instead of the earlier CSAPR NOX Ozone
Season Trading Program (now renamed
the ‘‘Group 1’’ program) and replaces
the ozone season budget for New York
with a lower budget developed to
address the revised and more stringent
2008 Ozone NAAQS. In DEC’s July 14,
2016 commitment letter to EPA, New
York indicated that the State would
2 The date supersedes the dates identified in the
July 14, 2016, and March 24, 2017 letters.
3 81 FR 74504 (October 26, 2016).
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revise 6 NYCRR Part 243 to conform
with the final CSAPR Update. For this
reason, EPA is acting at this time only
on 6 NYCRR Parts 200, 244 and 245.
This conditional final rule is effective
immediately upon publication in the
Federal Register. Section 553(d) of the
Administrative Procedure Act (5 U.S.C.
553(d)), which generally provides that
final rules may not take effect earlier
than 30 days after publication in the
Federal Register but allows exceptions
where an agency finds good cause and
publishes its finding with the rule,
applies to this action. Ordinarily, a 30day transition period before a new rule
takes effect would give affected parties
an opportunity to adjust their behavior
and prepare for compliance. However,
in this instance no transition period is
necessary because this rule does not
impose new requirements. Under
CSAPR’s existing requirements, on
March 1 of each year affected sources
must hold quantities of emissions
allowances not less than their emissions
during the prior year’s control period.
The CSAPR regulations provide for
default allocations to affected sources of
allowances eligible for use in meeting
this requirement. In this rule, in
accordance with options CSAPR makes
available to States, EPA is conditionally
approving into New York’s SIP the
State’s allocation rules to replace the
default federally-established allocations.
The sooner this rule is effective, the
sooner allowances eligible for use for
the 2017 control period can be issued to
affected sources in New York in the
amounts determined under New York’s
rules, which will assist the sources in
planning to meet their March 1, 2018,
compliance requirement. EPA therefore
finds good cause to make this
conditional final rule effective
immediately upon publication in the
Federal Register.
II. Background on CSAPR and CSAPRRelated SIP Revisions
EPA issued CSAPR in July 2011 to
address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning
interstate transport of air pollution. As
amended (including the 2016 CSAPR
Update), CSAPR requires 27 Eastern
states to limit their statewide emissions
of SO2 and/or NOX in order to mitigate
transported air pollution unlawfully
impacting other states’ ability to attain
or maintain four NAAQS: the 1997
annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, the 1997 Ozone NAAQS,
and the 2008 Ozone NAAQS. The
CSAPR emissions limitations are
defined in terms of maximum statewide
‘‘budgets’’ for emissions of annual SO2,
annual NOX, and/or ozone-season NOX
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by each covered state’s large EGUs. The
CSAPR state budgets are implemented
in two phases of generally increasing
stringency, with the Phase 1 budgets
applying to emissions in 2015 and 2016
and the Phase 2 (and CSAPR Update)
budgets applying to emissions in 2017
and later years. As a mechanism for
achieving compliance with the
emissions limitations, CSAPR
establishes five federal emissions
trading programs: A program for annual
NOX emissions, two geographically
separate programs for annual SO2
emissions, and two geographically
separate programs for ozone-season NOX
emissions. CSAPR also establishes FIP
requirements applicable to the large
EGUs in each covered state. The CSAPR
FIP provisions require each state’s EGUs
to participate in up to three of the five
CSAPR trading programs.
CSAPR includes provisions under
which states may submit and EPA will
approve SIP revisions to modify or
replace the CSAPR FIP requirements
while allowing states to continue to
meet their transport-related obligations
using either CSAPR’s federal emissions
trading programs or state emissions
trading programs integrated with the
federal programs.4 Through such a SIP
revision, a state may replace EPA’s
default provisions for allocating
emission allowances among the state’s
units, employing any state-selected
methodology to allocate or auction the
allowances, subject to timing criteria
and limits on overall allowance
quantities. In the case of CSAPR’s
federal trading programs for ozoneseason NOX emissions (or integrated
state trading programs), a state may also
expand trading program applicability to
include certain smaller EGUs.5 If a state
wants to replace CSAPR FIP
requirements with SIP requirements
under which the state’s units participate
in a state trading program that is
integrated with and identical to the
federal trading program even as to the
allocation and applicability provisions,
the state may submit a SIP revision for
that purpose as well. However, no
emissions budget increases or other
substantive changes to the trading
program provisions are allowed. A state
whose units are subject to multiple
CSAPR FIPs and federal trading
4 See 40 CFR 52.38, 52.39. States also retain the
ability to submit SIP revisions to meet their
transport-related obligations using mechanisms
other than the CSAPR federal trading programs or
integrated state trading programs.
5 States covered by both the CSAPR Update and
the NOX SIP Call have the additional option to
expand applicability under the CSAPR NOX Ozone
Season Group 2 Trading Program to include nonEGUs that would have participated in the former
NOX Budget Trading Program.
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programs may submit SIP revisions to
modify or replace either some or all of
those FIP requirements.
States can submit two basic forms of
CSAPR-related SIP revisions effective
for emissions control periods in 2017 or
later years.6 Specific criteria for
approval of each form of SIP revision
are set forth in the CSAPR regulations.
Under the first alternative—an
‘‘abbreviated’’ SIP revision—a state may
submit a SIP revision that upon
approval replaces the default allowance
allocation and/or applicability
provisions of a CSAPR federal trading
program for the state.7 Approval of an
abbreviated SIP revision leaves the
corresponding CSAPR FIP and all other
provisions of the relevant federal
trading program in place for the state’s
units.
Under the second alternative—a
‘‘full’’ SIP revision—a state may submit
a SIP revision that upon approval
replaces a CSAPR federal trading
program for the state with a state trading
program integrated with the federal
trading program, so long as the state
trading program is substantively
identical to the federal trading program
or does not substantively differ from the
federal trading program except as
discussed above with regard to the
allowance allocation and/or
applicability provisions.8 For purposes
of a full SIP revision, a state may either
adopt state rules with complete trading
program language, incorporate the
federal trading program language into its
state rules by reference (with
appropriate conforming changes), or
employ a combination of these
approaches.
The CSAPR regulations identify
several important consequences and
limitations associated with approval of
a full SIP revision. First, upon EPA’s
approval of a full SIP revision as
correcting the deficiency in the state’s
SIP that was the basis for a particular set
of CSAPR FIP requirements, the
obligation to participate in the
corresponding CSAPR federal trading
program is automatically eliminated for
units subject to the state’s jurisdiction
without the need for a separate EPA
withdrawal action, so long as EPA’s
approval of the SIP is full and
unconditional.9 Second, approval of a
full SIP revision does not terminate the
obligation to participate in the
corresponding CSAPR federal trading
6 CSAPR also provides for a third, more
streamlined form of SIP revision that is effective
only for control periods in 2016 and is not relevant
here. See § 52.38(a)(3), (b)(3), (b)(7); § 52.39(d), (g).
7 § 52.38(a)(4), (b)(4), (b)(8); § 52.39(e), (h).
8 § 52.38(a)(5), (b)(5), (b)(9); § 52.39(f), (i).
9 § 52.38(a)(6), (b)(10(i); § 52.39(j).
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program for any units located in any
Indian country within the borders of the
state, and if and when a unit is located
in Indian country within a state’s
borders, EPA may modify the SIP
approval to exclude from the SIP, and
include in the surviving CSAPR FIP
instead, certain trading program
provisions that apply jointly to units in
the state and to units in Indian country
within the state’s borders.10 Finally, if at
the time a full SIP revision is approved
EPA has already started recording
allocations of allowances for a given
control period to a state’s units, the
federal trading program provisions
authorizing EPA to complete the process
of allocating and recording allowances
for that control period to those units
will continue to apply, unless EPA’s
approval of the SIP revision provides
otherwise.11
On December 1, 2015, New York
submitted to EPA an abbreviated SIP
revision that, if approved, would
replace the default allowance allocation
provisions of the CSAPR SO2 Group 1,
CSAPR NOX Annual, and CSAPR NOX
Ozone Season Trading Programs for the
state’s EGUs for the control periods in
2017 and beyond with provisions
establishing state-determined
allocations for those control periods but
would leave the corresponding CSAPR
FIPs and all other provisions of the
trading programs in place.
The SIP submittal includes the
following adopted state rules: 6 NYCRR
Part 243, ‘‘Transport Rule NOX Ozone
Season Trading Program,’’ 6 NYCRR
Part 244, ‘‘Transport Rule NOX Annual
Trading Program,’’ and 6 NYCRR Part
245, ‘‘Transport Rule SO2 Trading
Program.’’ Previous versions of the rules
developed for state participation in the
Clean Air Interstate Rule 12 (CAIR), i.e.,
6 NYCRR Part 243, ‘‘CAIR NOX Ozone
Season Trading Program,’’ 6 NYCRR
Part 244, ‘‘CAIR NOX Annual Trading
Program,’’ and 6 NYCRR Part 245,
‘‘CAIR SO2 Trading Program,’’ have
been repealed and replaced in their
entirety with the new rules. Attendant
revisions were made to 6 NYCRR Part
200, ‘‘General Provisions,’’ to update the
list of referenced material that are cited
in the amended New York regulations.
The regulations were adopted on
November 10, 2015, and effective on
December 12, 2015.
As discussed in section I, EPA is not
acting at this time on the portion of New
York’s SIP submittal addressing 6
10 § 52.38(a)(5)(iv)–(v), (a)(6), (b)(5)(v)–(vi),
(b)(9)(vi)–(vii), (b)(10)(i); § 52.39(f)(4)–(5), (i)(4)–(5),
(j).
11 § 52.38(a)(7), (b)(11)(i); § 52.39(k).
12 70 FR 25162 (May 12, 2005).
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NYCRR Part 243, which will be
addressed in another rulemaking at a
later date. In this rulemaking, EPA is
addressing NYCRR Parts 244, 245, and
200.
In a notice of proposed rulemaking
(NPRM) published on August 29, 2017
(82 FR 40963), EPA proposed to
conditionally approve the portion of
New York’s submittal designed to
replace the federal CSAPR SO2 Group 1,
and CSAPR NOX Annual Trading
Programs. The NPRM provides
additional detail regarding the
background and rationale for EPA’s
conditional approval.
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III. What comments were received in
response to EPA’s proposed action?
Comments on the NPRM were due on
September 28, 2017. EPA received no
comments on the proposed action.
IV. What is EPA’s conclusion?
The EPA is conditionally approving
the New York SIP revision submitted on
December 1, 2015 concerning
allocations to New York units of CSAPR
NOX Annual allowances and CSAPR
SO2 Group 1 allowances for the control
periods in 2017 and 2018, and future
control periods beyond 2018. This rule
conditionally approves into the New
York SIP amendments to 6 NYCRR Parts
244 and 245 that incorporate CSAPR
requirements into the State rules, and
allows the DEC to allocate CSAPR
allowances to regulated entities in New
York. EPA is also conditionally
approving the attendant revisions to 6
NYCRR Part 200 to update the list of
referenced materials cited in the
amended New York regulations.
The conditional approval of Parts 200,
244, and 245 is based upon DEC’s
commitment to make the necessary
changes, identified in the July 14, 2016,
March 4, 2017, and July 6, 2017
commitment letters, to New York’s 6
NYCRR Part 244, ‘‘Transport Rule NOX
Annual Trading Program,’’ Part 245,
‘‘Transport Rule SO2 Group 1 Trading
Program,’’ and Part 200, ‘‘General
Provisions.’’ See section IV B. of the
NPRM published on August 29, 2017
(82 FR 40967) concerning EPA’s
analysis of New York’s budget,
allowance allocation methodology,
timing of submission of allocations,
replaceable provisions of a CSAPR
federal trading program under an
abbreviated SIP, applicability
determinations, and other substantive
changes to the CSAPR federal trading
program regulations.
Following the conditional approval of
Part 200, Part 244, and Part 245,
allocations of CSAPR NOX Annual
allowances and CSAPR SO2 Group 1
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allowances will be made according to
the provisions of New York’s SIP (as
modified by the DEC’s July 14, 2016,
March 24, 2017, and July 6, 2017
commitment letters to EPA) instead of
40 CFR 97.411(a), 97.411(b)(1),
97.412(a), 97.611(a), 97.611(b)(1), and
97.612(a). EPA’s action on this SIP
revision does not alter any provisions of
the federal CSAPR NOX Annual Trading
Program and the federal CSAPR SO2
Group 1 Trading Program as applied to
New York units other than the
allowance allocation provisions, and the
FIPs requiring the units to participate in
the programs (as modified by this SIP
revision) remain in place. EPA is
finalizing the conditional approval of
Part 200, Part 244 and Part 245 because
New York’s rules (when modified by the
DEC as indicated in its July 14, 2016,
March 24, 2017, and July 6, 2017
commitment letters to EPA) will meet
the requirements of the CAA and EPA’s
regulations for an abbreviated SIP
revision and will replace EPA’s default
allocations of CSAPR emission
allowances with state-determined
allocations, as discussed in section IV.B
of the NPRM.
Under CAA section 110(k)(4), the EPA
may approve a SIP revision based on a
commitment by a state to adopt specific
enforceable measures by a date certain,
but not later than one year after the date
of final conditional approval. If the state
fails to meet its commitment to submit
a revised SIP by December 29, 2017 [i.e.,
the date of commitment from the state’s
July 6, 2017 letter], or if the EPA finds
the state’s revisions to be incomplete, or
the EPA disapproves the state’s
revisions, the conditional approval will,
by operation of law, become a
disapproval. EPA would notify the state
by letter that such action has occurred.
At that time, the SIP revisions in
question would not be part of the
approved SIP. If that were to occur, EPA
would subsequently publish a
document in the Federal Register
notifying the public that the conditional
approval automatically converts to a
disapproval.13 If, however, the state
meets its commitment within the
applicable timeframe, EPA would
subsequently publish in the Federal
Register a document notifying the
public that EPA intends to convert the
conditional approval to a full approval.
Because a FIP already in place
satisfies New York’s obligations to
mitigate interstate transport air
pollution, should a disapproval become
13 In the event the conditional approval
automatically reverts to a disapproval, the validity
of allocations made pursuant to the SIP revision
before the date of such reversion would not be
affected.
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finalized as noted above, the EPA will
not be required to take further action.
Additionally, since the SIP submission
is not required in response to a SIP call
under CAA section 110(k)(5), mandatory
sanctions under CAA section 179 would
not apply because the deficiencies are
not with respect to a submission that is
required under CAA title I part D.
V. Incorporation by Reference
In this rule, with our conditional
approval, EPA is finalizing regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
finalizing, with our conditional
approval, the incorporation by reference
revisions to 6 NYCRR Parts 200, entitled
‘‘General Provisions’’, adopted
November 10, 2015, 6 NYCRR Part 244,
entitled ‘‘Transport Rule NOX Annual
Trading Program’’, adopted November
10, 2015, and NYCRR Part 245, entitled
‘‘Transport Rule SO2 Group 1 Trading
Program, adopted November 10, 2015.
EPA has made, and will continue to
make, these materials generally
available through www.regulations.gov,
and/or at the EPA Region 2 Office
(please contact the person identified in
the FOR FURTHER INFORMATION CONTACT
section of this preamble for more
information). Therefore, these materials
have been conditionally approved by
EPA for inclusion in the SIP, have been
incorporated by EPA into that plan, are
fully federally enforceable under
sections 110 and 113 of the CAA as of
the effective date of the final rulemaking
of EPA’s approval, and will be
incorporated by reference by the
Director of the Federal Register in the
next update of the SIP compilation.14
VI. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves State law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by State law. For that reason,
this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
14 62
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October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by February 5, 2018.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposes of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen Dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 20, 2017.
Peter D. Lopez,
Regional Administrator, Region 2.
Part 52 chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42.U.S.C. 7401 et seq.
Subpart A—General Provisions
§ 52.38
[Amended]
2. In § 52.38, paragraph (a)(8)(ii) is
amended by removing ‘‘Kansas and
Missouri’’ and adding in its place
‘‘Kansas, Missouri, and New York’’.
■
§ 52.39
[Amended]
3. In § 52.39, paragraph (l)(2) is
amended by adding ‘‘and New York’’
after ‘‘Missouri’’.
■
Subpart HH—New York
4. In § 52.1670, paragraph (c) is
amended by revising the table entries
‘‘Title 6, Part 200, Subpart 200.9’’, ‘‘Title
6, Part 244’’, and ‘‘Title 6, Part 245’’ to
read as follows:
■
§ 52.1670
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED NEW YORK STATE REGULATIONS AND LAWS
State
effective
date
EPA approval
date
Title/subject
*
*
Title 6, Part 200, Subpart 200.9 ............
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State citation
*
*
General Provisions, Referenced Material.
*
12/17/15
*
12/5/17
*
• EPA is approving reference documents that
are not Federally enforceable.
• EPA approval finalized
at [insert Federal Register citation].
• Conditional Approval.
*
*
Title 6, Part 244 .....................................
*
*
Transport Rule NOX Annual Trading
Program.
*
12/17/15
*
12/5/17
*
• EPA approval finalized
at [insert Federal Register citation].
• Conditional Approval.
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EPA-APPROVED NEW YORK STATE REGULATIONS AND LAWS—Continued
State
effective
date
State citation
Title/subject
Title 6, Part 245 .....................................
Transport Rule SO2 Group 1 Trading
Program.
*
*
*
*
*
*
*
*
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
[EPA–HQ–OPP–2011–1033; FRL–9968–30]
1,3-dibromo-5,5-dimethylhydantoin;
Exemption From the Requirement of a
Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes an
exemption from the requirement of a
tolerance for residues of 1,3-dibromo5,5-dimethylhydantoin in or on food
when used in antimicrobial pesticide
formulations applied to food contact
surfaces in public eating places, dairy
processing equipment, and/or food
processing equipment and utensils. In
addition, this regulation establishes an
exemption from the requirement of a
tolerance for residues of 1,3-dibromo5,5-dimethylhydantoin when used as an
antimicrobial pesticide treatment
solution. Albemarle Corporation
submitted a petition to EPA under the
Federal Food, Drug, and Cosmetic Act
(FFDCA), requesting exemptions from
the requirement of a tolerance for
residues of 1,3-dibromo-5,5dimethylhydantoin in end-use products
applied to food contact surfaces and
used for washing raw agricultural
commodities. This regulation eliminates
the need to establish a maximum
permissible level of residues of 1,3dibromo-5,5-dimethylhydantoin
resulting from uses consistent with the
terms of these exemptions.
DATES: This regulation is effective
December 5, 2017. Objections and
requests for hearings must be received
on or before February 5, 2018, and must
be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
sradovich on DSK3GMQ082PROD with RULES
SUMMARY:
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*
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The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2011–1033, is
available at https://www.regulations.gov
or at the Office of Pesticide Programs
Regulatory Public Docket (OPP Docket)
in the Environmental Protection Agency
Docket Center (EPA/DC), West William
Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington, DC
20460–0001. The Public Reading Room
is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the OPP
Docket is (703) 305–5805. Please review
the visitor instructions and additional
information about the docket available
at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
Steven H. Weiss, Antimicrobials
Division (7510P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460–0001; main
telephone number: (703) 308–6411;
email address: ADFRNotices@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. The following
list of North American Industrial
Classification System (NAICS) codes is
not intended to be exhaustive, but rather
provides a guide to help readers
determine whether this document
applies to them. Potentially affected
entities may include:
• Crop production (NAICS code 111),
e.g., agricultural workers; greenhouse,
nursery, and floriculture workers;
farmers.
• Animal production (NAICS code
112), e.g., cattle ranchers and farmers,
dairy cattle farmers, livestock farmers.
• Food manufacturing (NAICS code
311), e.g., agricultural workers; farmers;
greenhouse, nursery, and floriculture
workers; ranchers; pesticide applicators.
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[FR Doc. 2017–26079 Filed 12–4–17; 8:45 am]
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date
Sfmt 4700
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Comments
• EPA approval finalized
at [insert Federal Register citation].
• Conditional Approval.
*
• Pesticide manufacturing (NAICS
code 32532), e.g., agricultural workers;
commercial applicators; farmers;
greenhouse, nursery, and floriculture
workers; residential users.
B. How can I get electronic access to
other related information?
You may access a frequently updated
electronic version of 40 CFR part 180
through the Government Printing
Office’s e-CFR site at https://
www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&
tpl=/ecfrbrowse/Title40/40tab_02.tpl.
To access the OSCPP test guidelines
referenced in this document
electronically, please go to https://
www.epa.gov/ocspp and select ‘‘Test
Methods and Guidelines.’’
C. How can I file an objection or hearing
request?
Under FFDCA section 408(g), 21
U.S.C. 346a, any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
or request a hearing on this regulation
in accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2011–1033 in the subject line on
the first page of your submission. All
objections and requests for a hearing
must be in writing, and must be
received by the Hearing Clerk on or
before February 5, 2018. Addresses for
mail and hand delivery of objections
and hearing requests are provided in 40
CFR 178.25(b).
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing (excluding
any Confidential Business Information
(CBI)) for inclusion in the public docket.
Information not marked confidential
pursuant to 40 CFR part 2 may be
disclosed publicly by EPA without prior
notice. Submit the non-CBI copy of your
objection or hearing request, identified
by docket ID number EPA–HQ–OPP–
2011–1033, by one of the following
methods:
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[Federal Register Volume 82, Number 232 (Tuesday, December 5, 2017)]
[Rules and Regulations]
[Pages 57362-57367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26079]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2017-0425, FRL-9971-25-Region 2]
Approval of Air Quality Implementation Plans; New York; Cross-
State Air Pollution Rule; NOX Annual and SO2 Group 1 Trading Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is conditionally
approving a revision to the New York State Implementation Plan (SIP)
addressing requirements of the Cross-State Air Pollution Rule (CSAPR).
Under the CSAPR, large electricity generating units in New York are
subject to Federal Implementation Plans (FIPs) requiring the units to
participate in CSAPR federal trading programs for annual emissions of
nitrogen oxides (NOX), ozone season emissions of
NOX, and annual emissions of sulfur dioxide
(SO2). This action conditionally approves into New York's
SIP the State's regulations that replace the default allowance
allocation provisions of the CSAPR federal trading programs for annual
NOX and SO2 emissions. EPA is conditionally
approving New York's regulations for annual NOX and
SO2 emissions because, while the submitted rules do not
fully conform to CSAPR, New York is in the process of making further
revisions to its rules and has provided a commitment to finalize and
submit them by December 29, 2017. Upon timely meeting of this
commitment, EPA will propose to convert the conditional approval of the
SIP revision to a full approval.
DATES: This rule is effective December 5, 2017.
ADDRESSES: EPA has established a docket for this action under Docket ID
number EPA-R02-OAR-2017-0425. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information may not be publicly available, i.e., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available through
www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3702, or by email at
fradkin.kenneth@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA taking?
II. Background on CSAPR and CSAPR-Related SIP Revisions
III. What comments were received in response to EPA's proposed
action?
IV. What is EPA's conclusion?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is conditionally approving portions of New York's December 1,
[[Page 57363]]
2015 SIP submittal concerning CSAPR \1\ trading programs for annual
emissions of NOX and SO2.
---------------------------------------------------------------------------
\1\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and 40 CFR part 97).
---------------------------------------------------------------------------
Large Electric Generating Units (EGUs) in New York are subject to
CSAPR FIPs that require the units to participate in the federal CSAPR
NOX Annual Trading Program and the federal CSAPR
SO2 Group 1 Trading Program. CSAPR provides a process for
the submission and approval of SIP revisions to replace certain
provisions of the CSAPR FIPs while the remaining FIP provisions
continue to apply. This type of CSAPR SIP is termed an abbreviated SIP.
EPA proposed to conditionally approve New York's submittal on August
29, 2017 (82 FR 40963).
The New York State Department of Environmental Conservation (DEC)
amended portions of Title 6 of the New York Codes, Rules and
Regulations (6 NYCRR) in order to incorporate CSAPR requirements into
the State's rules and allow the DEC to allocate CSAPR allowances to
regulated entities in New York. 6 NYCRR Part 244, ``CAIR NOX
Annual Trading Program,'' has been repealed and replaced in its
entirety with a new rule, 6 NYCRR Part 244, ``Transport Rule
NOX Annual Trading Program.'' 6 NYCRR Part 245, ``CAIR
SO2 Trading Program,'' has also been repealed and replaced
in its entirety with a new rule, 6 NYCRR Part 245, ``Transport Rule
SO2 Group 1 Trading Program.'' Attendant revisions were made
to 6 NYCRR Part 200, ``General Provisions,'' to update the list of
referenced materials that are cited in the amended New York
regulations. EPA is conditionally approving into the SIP the revised
versions of 6 NYCRR Parts 200, 244 and 245.
EPA is conditionally approving this SIP revision, as opposed to
fully approving it, because of several deficiencies that New York must
address. The conditional approval of portions of New York's SIP
submittal is conditioned on New York meeting the commitment,
articulated in its letters to EPA dated July 14, 2016, March 4, 2017,
and July 6, 2017, to make the necessary changes to 6 NYCRR Parts 200,
244, and 245 to meet the requirements of the Clean Air Act (CAA) and
EPA's regulations for approval of an abbreviated SIP revision to
replace EPA's default allocations of CSAPR emission allowances with
state-determined allocations. In a July 6, 2017 letter to EPA, the DEC
committed to submitting a SIP revision that addresses EPA identified
deficiencies by December 29, 2017.\2\ Once EPA determines that the DEC
has satisfied these conditions and EPA approves the revisions (after
EPA notice and comment), EPA shall remove the conditional approval and
this SIP revision will at that time receive full approval status. The
conditionally approved SIP submission will remain part of the SIP until
EPA takes further action. If New York fails to meet its commitment to
submit a revised SIP by December 29, 2017 [i.e., the date of commitment
from the state's July 6, 2017 letter], the conditional approval will
revert to a disapproval.
---------------------------------------------------------------------------
\2\ The date supersedes the dates identified in the July 14,
2016, and March 24, 2017 letters.
---------------------------------------------------------------------------
This action conditionally approves into New York's SIP state-
determined allowance allocation procedures for annual NOX
and SO2 allowances that would replace EPA's default
allocation procedures for the control periods in 2017 and beyond. The
conditional approval of this SIP revision does not alter any provision
of either the CSAPR NOX Annual Trading Program or the CSAPR
SO2 Group 1 Trading Program as applied to New York units
other than the allowance allocation provisions, and the FIP provisions
requiring those units to participate in the programs (as modified by
this SIP revision) remain in place.
New York also repealed 6 NYCRR Part 243, ``CAIR NOX
Ozone Season Trading Program,'' and replaced it in its entirety with a
new rule, 6 NYCRR Part 243, ``Transport Rule NOX Ozone
Season Trading Program,'' which was included in New York's December 1,
2015 SIP submittal. EPA is not acting at this time on the portion of
New York's SIP submittal addressing 6 NYCRR Part 243. Since New York's
December 1, 2015 submission, EPA has finalized the CSAPR Update rule
\3\ to address Eastern states' interstate air pollution mitigation
obligations with regard to the 2008 Ozone National Ambient Air Quality
Standard (NAAQS). Among other things, starting in 2017 the CSAPR Update
requires New York EGUs to participate in the new CSAPR NOX
Ozone Season Group 2 Trading Program instead of the earlier CSAPR
NOX Ozone Season Trading Program (now renamed the ``Group
1'' program) and replaces the ozone season budget for New York with a
lower budget developed to address the revised and more stringent 2008
Ozone NAAQS. In DEC's July 14, 2016 commitment letter to EPA, New York
indicated that the State would revise 6 NYCRR Part 243 to conform with
the final CSAPR Update. For this reason, EPA is acting at this time
only on 6 NYCRR Parts 200, 244 and 245.
---------------------------------------------------------------------------
\3\ 81 FR 74504 (October 26, 2016).
---------------------------------------------------------------------------
This conditional final rule is effective immediately upon
publication in the Federal Register. Section 553(d) of the
Administrative Procedure Act (5 U.S.C. 553(d)), which generally
provides that final rules may not take effect earlier than 30 days
after publication in the Federal Register but allows exceptions where
an agency finds good cause and publishes its finding with the rule,
applies to this action. Ordinarily, a 30-day transition period before a
new rule takes effect would give affected parties an opportunity to
adjust their behavior and prepare for compliance. However, in this
instance no transition period is necessary because this rule does not
impose new requirements. Under CSAPR's existing requirements, on March
1 of each year affected sources must hold quantities of emissions
allowances not less than their emissions during the prior year's
control period. The CSAPR regulations provide for default allocations
to affected sources of allowances eligible for use in meeting this
requirement. In this rule, in accordance with options CSAPR makes
available to States, EPA is conditionally approving into New York's SIP
the State's allocation rules to replace the default federally-
established allocations. The sooner this rule is effective, the sooner
allowances eligible for use for the 2017 control period can be issued
to affected sources in New York in the amounts determined under New
York's rules, which will assist the sources in planning to meet their
March 1, 2018, compliance requirement. EPA therefore finds good cause
to make this conditional final rule effective immediately upon
publication in the Federal Register.
II. Background on CSAPR and CSAPR-Related SIP Revisions
EPA issued CSAPR in July 2011 to address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning interstate transport of air
pollution. As amended (including the 2016 CSAPR Update), CSAPR requires
27 Eastern states to limit their statewide emissions of SO2
and/or NOX in order to mitigate transported air pollution
unlawfully impacting other states' ability to attain or maintain four
NAAQS: the 1997 annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, the 1997 Ozone NAAQS, and the 2008 Ozone NAAQS.
The CSAPR emissions limitations are defined in terms of maximum
statewide ``budgets'' for emissions of annual SO2, annual
NOX, and/or ozone-season NOX
[[Page 57364]]
by each covered state's large EGUs. The CSAPR state budgets are
implemented in two phases of generally increasing stringency, with the
Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2
(and CSAPR Update) budgets applying to emissions in 2017 and later
years. As a mechanism for achieving compliance with the emissions
limitations, CSAPR establishes five federal emissions trading programs:
A program for annual NOX emissions, two geographically
separate programs for annual SO2 emissions, and two
geographically separate programs for ozone-season NOX
emissions. CSAPR also establishes FIP requirements applicable to the
large EGUs in each covered state. The CSAPR FIP provisions require each
state's EGUs to participate in up to three of the five CSAPR trading
programs.
CSAPR includes provisions under which states may submit and EPA
will approve SIP revisions to modify or replace the CSAPR FIP
requirements while allowing states to continue to meet their transport-
related obligations using either CSAPR's federal emissions trading
programs or state emissions trading programs integrated with the
federal programs.\4\ Through such a SIP revision, a state may replace
EPA's default provisions for allocating emission allowances among the
state's units, employing any state-selected methodology to allocate or
auction the allowances, subject to timing criteria and limits on
overall allowance quantities. In the case of CSAPR's federal trading
programs for ozone-season NOX emissions (or integrated state
trading programs), a state may also expand trading program
applicability to include certain smaller EGUs.\5\ If a state wants to
replace CSAPR FIP requirements with SIP requirements under which the
state's units participate in a state trading program that is integrated
with and identical to the federal trading program even as to the
allocation and applicability provisions, the state may submit a SIP
revision for that purpose as well. However, no emissions budget
increases or other substantive changes to the trading program
provisions are allowed. A state whose units are subject to multiple
CSAPR FIPs and federal trading programs may submit SIP revisions to
modify or replace either some or all of those FIP requirements.
---------------------------------------------------------------------------
\4\ See 40 CFR 52.38, 52.39. States also retain the ability to
submit SIP revisions to meet their transport-related obligations
using mechanisms other than the CSAPR federal trading programs or
integrated state trading programs.
\5\ States covered by both the CSAPR Update and the
NOX SIP Call have the additional option to expand
applicability under the CSAPR NOX Ozone Season Group 2
Trading Program to include non-EGUs that would have participated in
the former NOX Budget Trading Program.
---------------------------------------------------------------------------
States can submit two basic forms of CSAPR-related SIP revisions
effective for emissions control periods in 2017 or later years.\6\
Specific criteria for approval of each form of SIP revision are set
forth in the CSAPR regulations. Under the first alternative--an
``abbreviated'' SIP revision--a state may submit a SIP revision that
upon approval replaces the default allowance allocation and/or
applicability provisions of a CSAPR federal trading program for the
state.\7\ Approval of an abbreviated SIP revision leaves the
corresponding CSAPR FIP and all other provisions of the relevant
federal trading program in place for the state's units.
---------------------------------------------------------------------------
\6\ CSAPR also provides for a third, more streamlined form of
SIP revision that is effective only for control periods in 2016 and
is not relevant here. See Sec. 52.38(a)(3), (b)(3), (b)(7); Sec.
52.39(d), (g).
\7\ Sec. 52.38(a)(4), (b)(4), (b)(8); Sec. 52.39(e), (h).
---------------------------------------------------------------------------
Under the second alternative--a ``full'' SIP revision--a state may
submit a SIP revision that upon approval replaces a CSAPR federal
trading program for the state with a state trading program integrated
with the federal trading program, so long as the state trading program
is substantively identical to the federal trading program or does not
substantively differ from the federal trading program except as
discussed above with regard to the allowance allocation and/or
applicability provisions.\8\ For purposes of a full SIP revision, a
state may either adopt state rules with complete trading program
language, incorporate the federal trading program language into its
state rules by reference (with appropriate conforming changes), or
employ a combination of these approaches.
---------------------------------------------------------------------------
\8\ Sec. 52.38(a)(5), (b)(5), (b)(9); Sec. 52.39(f), (i).
---------------------------------------------------------------------------
The CSAPR regulations identify several important consequences and
limitations associated with approval of a full SIP revision. First,
upon EPA's approval of a full SIP revision as correcting the deficiency
in the state's SIP that was the basis for a particular set of CSAPR FIP
requirements, the obligation to participate in the corresponding CSAPR
federal trading program is automatically eliminated for units subject
to the state's jurisdiction without the need for a separate EPA
withdrawal action, so long as EPA's approval of the SIP is full and
unconditional.\9\ Second, approval of a full SIP revision does not
terminate the obligation to participate in the corresponding CSAPR
federal trading program for any units located in any Indian country
within the borders of the state, and if and when a unit is located in
Indian country within a state's borders, EPA may modify the SIP
approval to exclude from the SIP, and include in the surviving CSAPR
FIP instead, certain trading program provisions that apply jointly to
units in the state and to units in Indian country within the state's
borders.\10\ Finally, if at the time a full SIP revision is approved
EPA has already started recording allocations of allowances for a given
control period to a state's units, the federal trading program
provisions authorizing EPA to complete the process of allocating and
recording allowances for that control period to those units will
continue to apply, unless EPA's approval of the SIP revision provides
otherwise.\11\
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\9\ Sec. 52.38(a)(6), (b)(10(i); Sec. 52.39(j).
\10\ Sec. 52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi),
(b)(9)(vi)-(vii), (b)(10)(i); Sec. 52.39(f)(4)-(5), (i)(4)-(5),
(j).
\11\ Sec. 52.38(a)(7), (b)(11)(i); Sec. 52.39(k).
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On December 1, 2015, New York submitted to EPA an abbreviated SIP
revision that, if approved, would replace the default allowance
allocation provisions of the CSAPR SO2 Group 1, CSAPR
NOX Annual, and CSAPR NOX Ozone Season Trading
Programs for the state's EGUs for the control periods in 2017 and
beyond with provisions establishing state-determined allocations for
those control periods but would leave the corresponding CSAPR FIPs and
all other provisions of the trading programs in place.
The SIP submittal includes the following adopted state rules: 6
NYCRR Part 243, ``Transport Rule NOX Ozone Season Trading
Program,'' 6 NYCRR Part 244, ``Transport Rule NOX Annual
Trading Program,'' and 6 NYCRR Part 245, ``Transport Rule
SO2 Trading Program.'' Previous versions of the rules
developed for state participation in the Clean Air Interstate Rule \12\
(CAIR), i.e., 6 NYCRR Part 243, ``CAIR NOX Ozone Season
Trading Program,'' 6 NYCRR Part 244, ``CAIR NOX Annual
Trading Program,'' and 6 NYCRR Part 245, ``CAIR SO2 Trading
Program,'' have been repealed and replaced in their entirety with the
new rules. Attendant revisions were made to 6 NYCRR Part 200, ``General
Provisions,'' to update the list of referenced material that are cited
in the amended New York regulations. The regulations were adopted on
November 10, 2015, and effective on December 12, 2015.
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\12\ 70 FR 25162 (May 12, 2005).
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As discussed in section I, EPA is not acting at this time on the
portion of New York's SIP submittal addressing 6
[[Page 57365]]
NYCRR Part 243, which will be addressed in another rulemaking at a
later date. In this rulemaking, EPA is addressing NYCRR Parts 244, 245,
and 200.
In a notice of proposed rulemaking (NPRM) published on August 29,
2017 (82 FR 40963), EPA proposed to conditionally approve the portion
of New York's submittal designed to replace the federal CSAPR
SO2 Group 1, and CSAPR NOX Annual Trading
Programs. The NPRM provides additional detail regarding the background
and rationale for EPA's conditional approval.
III. What comments were received in response to EPA's proposed action?
Comments on the NPRM were due on September 28, 2017. EPA received
no comments on the proposed action.
IV. What is EPA's conclusion?
The EPA is conditionally approving the New York SIP revision
submitted on December 1, 2015 concerning allocations to New York units
of CSAPR NOX Annual allowances and CSAPR SO2
Group 1 allowances for the control periods in 2017 and 2018, and future
control periods beyond 2018. This rule conditionally approves into the
New York SIP amendments to 6 NYCRR Parts 244 and 245 that incorporate
CSAPR requirements into the State rules, and allows the DEC to allocate
CSAPR allowances to regulated entities in New York. EPA is also
conditionally approving the attendant revisions to 6 NYCRR Part 200 to
update the list of referenced materials cited in the amended New York
regulations.
The conditional approval of Parts 200, 244, and 245 is based upon
DEC's commitment to make the necessary changes, identified in the July
14, 2016, March 4, 2017, and July 6, 2017 commitment letters, to New
York's 6 NYCRR Part 244, ``Transport Rule NOX Annual Trading
Program,'' Part 245, ``Transport Rule SO2 Group 1 Trading
Program,'' and Part 200, ``General Provisions.'' See section IV B. of
the NPRM published on August 29, 2017 (82 FR 40967) concerning EPA's
analysis of New York's budget, allowance allocation methodology, timing
of submission of allocations, replaceable provisions of a CSAPR federal
trading program under an abbreviated SIP, applicability determinations,
and other substantive changes to the CSAPR federal trading program
regulations.
Following the conditional approval of Part 200, Part 244, and Part
245, allocations of CSAPR NOX Annual allowances and CSAPR
SO2 Group 1 allowances will be made according to the
provisions of New York's SIP (as modified by the DEC's July 14, 2016,
March 24, 2017, and July 6, 2017 commitment letters to EPA) instead of
40 CFR 97.411(a), 97.411(b)(1), 97.412(a), 97.611(a), 97.611(b)(1), and
97.612(a). EPA's action on this SIP revision does not alter any
provisions of the federal CSAPR NOX Annual Trading Program
and the federal CSAPR SO2 Group 1 Trading Program as applied
to New York units other than the allowance allocation provisions, and
the FIPs requiring the units to participate in the programs (as
modified by this SIP revision) remain in place. EPA is finalizing the
conditional approval of Part 200, Part 244 and Part 245 because New
York's rules (when modified by the DEC as indicated in its July 14,
2016, March 24, 2017, and July 6, 2017 commitment letters to EPA) will
meet the requirements of the CAA and EPA's regulations for an
abbreviated SIP revision and will replace EPA's default allocations of
CSAPR emission allowances with state-determined allocations, as
discussed in section IV.B of the NPRM.
Under CAA section 110(k)(4), the EPA may approve a SIP revision
based on a commitment by a state to adopt specific enforceable measures
by a date certain, but not later than one year after the date of final
conditional approval. If the state fails to meet its commitment to
submit a revised SIP by December 29, 2017 [i.e., the date of commitment
from the state's July 6, 2017 letter], or if the EPA finds the state's
revisions to be incomplete, or the EPA disapproves the state's
revisions, the conditional approval will, by operation of law, become a
disapproval. EPA would notify the state by letter that such action has
occurred. At that time, the SIP revisions in question would not be part
of the approved SIP. If that were to occur, EPA would subsequently
publish a document in the Federal Register notifying the public that
the conditional approval automatically converts to a disapproval.\13\
If, however, the state meets its commitment within the applicable
timeframe, EPA would subsequently publish in the Federal Register a
document notifying the public that EPA intends to convert the
conditional approval to a full approval.
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\13\ In the event the conditional approval automatically reverts
to a disapproval, the validity of allocations made pursuant to the
SIP revision before the date of such reversion would not be
affected.
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Because a FIP already in place satisfies New York's obligations to
mitigate interstate transport air pollution, should a disapproval
become finalized as noted above, the EPA will not be required to take
further action. Additionally, since the SIP submission is not required
in response to a SIP call under CAA section 110(k)(5), mandatory
sanctions under CAA section 179 would not apply because the
deficiencies are not with respect to a submission that is required
under CAA title I part D.
V. Incorporation by Reference
In this rule, with our conditional approval, EPA is finalizing
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is finalizing, with our
conditional approval, the incorporation by reference revisions to 6
NYCRR Parts 200, entitled ``General Provisions'', adopted November 10,
2015, 6 NYCRR Part 244, entitled ``Transport Rule NOX Annual
Trading Program'', adopted November 10, 2015, and NYCRR Part 245,
entitled ``Transport Rule SO2 Group 1 Trading Program,
adopted November 10, 2015. EPA has made, and will continue to make,
these materials generally available through www.regulations.gov, and/or
at the EPA Region 2 Office (please contact the person identified in the
For Further Information Contact section of this preamble for more
information). Therefore, these materials have been conditionally
approved by EPA for inclusion in the SIP, have been incorporated by EPA
into that plan, are fully federally enforceable under sections 110 and
113 of the CAA as of the effective date of the final rulemaking of
EPA's approval, and will be incorporated by reference by the Director
of the Federal Register in the next update of the SIP compilation.\14\
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\14\ 62 FR 27968 (May 22, 1997)
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VI. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the CAA and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735,
[[Page 57366]]
October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 5, 2018. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen Dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 20, 2017.
Peter D. Lopez,
Regional Administrator, Region 2.
Part 52 chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart A--General Provisions
Sec. 52.38 [Amended]
0
2. In Sec. 52.38, paragraph (a)(8)(ii) is amended by removing ``Kansas
and Missouri'' and adding in its place ``Kansas, Missouri, and New
York''.
Sec. 52.39 [Amended]
0
3. In Sec. 52.39, paragraph (l)(2) is amended by adding ``and New
York'' after ``Missouri''.
Subpart HH--New York
0
4. In Sec. 52.1670, paragraph (c) is amended by revising the table
entries ``Title 6, Part 200, Subpart 200.9'', ``Title 6, Part 244'',
and ``Title 6, Part 245'' to read as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(c) * * *
EPA-Approved New York State Regulations and Laws
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval Comments
date date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Title 6, Part 200, Subpart General 12/17/15 12/5/17 EPA is approving
200.9. Provisions, reference documents that are
Referenced not Federally enforceable.
Material. EPA approval finalized
at [insert Federal Register
citation].
Conditional Approval.
* * * * * * *
Title 6, Part 244............ Transport Rule 12/17/15 12/5/17 EPA approval finalized
NOX Annual at [insert Federal Register
Trading citation].
Program. Conditional Approval.
[[Page 57367]]
Title 6, Part 245............ Transport Rule 12/17/15 12/5/17 EPA approval finalized
SO2 Group 1 at [insert Federal Register
Trading citation].
Program. Conditional Approval.
* * * * * * *
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* * * * *
[FR Doc. 2017-26079 Filed 12-4-17; 8:45 am]
BILLING CODE 6560-50-P
