Approval of Air Quality Implementation Plans; New York; Cross-State Air Pollution Rule; NOX, 22972-22982 [2019-10479]
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Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations
Mariners. The Captain of the Port, Lake
Michigan or a designated on-scene
representative may be contacted via
Channel 16, VHF–FM or at (414) 747–
7182.
Dated: May 15, 2019.
Thomas J. Stuhlreyer,
Captain, U.S. Coast Guard, Captain of the
Port, Lake Michigan.
[FR Doc. 2019–10539 Filed 5–20–19; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2019–0339]
Safety Zone for Fireworks Display;
Upper Potomac River, Washington
Channel, DC
Coast Guard, DHS.
Notice of enforcement of
regulation.
AGENCY:
ACTION:
The Coast Guard will enforce
a safety zone for a fireworks display
taking place over the Washington
Channel, adjacent to The Wharf DC,
Washington, DC on June 8, 2019, (with
an alternate date on October 18, 2019).
This action is necessary to ensure the
safety of life on navigable waterways
during the fireworks display. Our
regulation for recurring fireworks
displays at this location from January
12, 2019, through December 31, 2019
identifies the safety zones for these
fireworks display events. During the
enforcement period, persons and vessels
are prohibited from entering the safety
zone unless authorized by the Captain
of the Port Maryland-National Capital
Region or a designated representative.
DATES: The regulations in 33 CFR
165.T05–1011 will be enforced for the
location specified in paragraph (a) of
that section from 8 p.m. through 10:30
p.m. on June 8, 2019, and if necessary
due to inclement weather, from 8 p.m.
through 9:30 p.m. on October 18, 2019.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this notice of
enforcement, call or email Mr. Ron
Houck, U.S. Coast Guard Sector
Maryland-National Capital Region,
Waterways Management Division;
telephone 410–576–2674, email D05DG-SectorMD-NCR-MarineEvents@
uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce the safety zone in 33
CFR 165.T05–1011 (84 FR 4333, Feb. 15,
2019) for a fireworks display from 9
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SUMMARY:
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p.m. through 9:15 p.m. on June 8, 2019.
If necessary due to inclement weather,
the fireworks display event will be
rescheduled and the safety zone will be
enforced from 8 p.m. through 9:30 p.m.
on October 18, 2019. This action is
being taken to provide for the safety of
life on navigable waterways during the
fireworks display. Our regulation for
this fireworks display, § 165.T05–1011,
specifies the location of the regulated
area for this temporary safety zone,
which encompasses portions of the
Washington Channel, adjacent to The
Wharf DC, Washington, DC. During the
enforcement period, as specified in
§ 165.T05–1011(c), persons and vessels
may not enter the safety zones unless
authorized by the Captain of the Port
Sector Maryland-National Capital
Region (COTP) or the COTP’s
designated representative. All vessels
underway within the safety zone at the
time it is activated are to depart the
zone. The Coast Guard may be assisted
by other federal, state, or local agencies
in the enforcement of the safety zone.
This notice of enforcement is issued
under authority of 33 CFR 165.T05–
1011 and 5 U.S.C. 552(a). In addition to
this notice of enforcement in the
Federal Register, the Coast Guard will
provide notification of the enforcement
period via Broadcast Notice to Mariners
and may provide notice via the Local
Notice to Mariners.
Dated: May 15, 2019.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the
Port Maryland-National Capital Region.
[FR Doc. 2019–10527 Filed 5–20–19; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2019–0157; FRL–9993–69–
Region 2]
Approval of Air Quality Implementation
Plans; New York; Cross-State Air
Pollution Rule; NOX Ozone Season
Group 2, NOX Annual, and SO2 Group
1 Trading Programs
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking direct final
action to approve a revision to the New
York State Implementation Plan (SIP)
addressing requirements of the CrossState Air Pollution Rule (CSAPR).
Under the CSAPR, large electricity
SUMMARY:
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generating units in New York are subject
to Federal Implementation Plans (FIPs)
requiring the units to participate in
CSAPR federal trading programs for
ozone season emissions of nitrogen
oxides (NOX), annual emissions of NOX,
and annual emissions of sulfur dioxide
(SO2). This action approves into New
York’s SIP the State’s regulations that
replace the default allowance allocation
provisions of the CSAPR federal trading
programs for ozone season NOX, annual
NOX, and annual SO2 emissions. The
approval is being issued as a direct final
rule without a prior proposed rule
because EPA views it as uncontroversial
and does not anticipate adverse
comment.
This direct final rule will be
effective on June 20, 2019, without
further notice, unless the EPA receives
adverse comment by June 20, 2019. If
EPA receives adverse comment, we will
publish a timely withdrawal of the
direct final rule in the Federal Register
informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID number EPA–
R02–OAR–2019–0157, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or withdrawn. 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:
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:
DATES:
Table of Contents
I. What action is EPA taking today?
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II. Background on CSAPR and CSAPRRelated SIP Revisions
III. Criteria for Approval of CSAPR-Related
SIP Revisions
IV. New York’s Submittals and EPA’s
Analysis
V. EPA’s Action on New York’s Submittals
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
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I. What action is EPA taking today?
The EPA is taking direct final action
to approve New York’s November 30,
2018 SIP submittal concerning CSAPR 1
trading programs for ozone-season
emissions of NOX, annual emissions of
NOX, and annual emissions of 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 Ozone Season
Group 2 Trading Program, 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.
The New York State Department of
Environmental Conservation (DEC)
amended portions of Title 6 of the New
York Codes, Rules and Regulations (6
NYCRR) 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 243, ‘‘Transport
Rule NOX Ozone Season Trading
Program,’’ has been repealed and
replaced in its entirety with a new rule,
6 NYCRR Part 243, ‘‘CSAPR NOX Ozone
Season Group 2 Trading Program.’’ 6
NYCRR Part 244, ‘‘Transport Rule NOX
Annual Trading Program,’’ has been
repealed and replaced in its entirety
with a new rule, 6 NYCRR Part 244,
‘‘CSAPR NOX Annual Trading
Program.’’ 6 NYCRR Part 245,
‘‘Transport Rule SO2 Group 1 Trading
Program,’’ has also been repealed and
replaced in its entirety with a new rule,
6 NYCRR Part 245, ‘‘CSAPR SO2 Group
1 Trading Program.’’ Attendant
revisions were made to 6 NYCRR Part
200, ‘‘General Provisions,’’ to update the
list of referenced materials at Subpart
200.9 that are cited in the amended New
York regulations. The EPA is taking
direct final action to approve into the
New York SIP the revised versions of 6
NYCRR Parts 200 (Subpart 200.9), 243,
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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244, and 245 included in the November
30, 2018 submission.
The EPA is also taking direct final
action to repeal from the SIP previous
versions of 6 NYCRR Part 243, 6 NYCRR
Part 244, and 6 NYCRR Part 245 which
implemented New York’s discontinued
CAIR program. New York adopted
amendments to 6 NYCRR Part 243, 6
NYCRR Part 244, and 6 NYCRR Part 245
that repealed and replaced CAIR trading
program rules with CSAPR trading rules
on November 10, 2015. Subsequently,
on November 11, 2018, New York
adopted amendments to 6 NYCRR Part
243, 6 NYCRR Part 244, and 6 NYCRR
Part 245 that repealed and replaced the
November 15, 2015 adopted rules that
implemented New York’s CSAPR
program with new versions of New
York’s CSAPR trading program rules.
The rules being repealed from the SIP
are 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.’’
The EPA is also taking direct final
action to approve into the SIP a revised
version of 6 NYCRR Part 200 (Subpart
200.1) that was submitted to the EPA on
July 23, 2015 to address updated
definitions at Part 200.1(f) that were
associated with a repeal of 6 NYCRR
Part 203, ‘‘Indirect Sources of Air
Contamination.’’
The revised versions of 6 NYCRR
Parts 200 (Subpart 200.9), 243, 244, and
245 included in the November 30, 2018
SIP submission replace the previous
versions of those rules that were
included in a December 1, 2015 SIP
submission. The EPA identified
deficiencies in the December 1, 2015
submission but on November 20, 2017
conditionally approved those previous
versions of Parts 200, 244, and 245 (but
not Part 243) into the SIP (82 FR 57362,
December 5, 2017). In a July 6, 2017
letter to the EPA, New York committed
to submitting a SIP revision that
addressed the identified deficiencies by
December 29, 2017. However, New
York’s response to the conditional
approval was not submitted to the EPA
by December 29, 2017. The November
30, 2018 SIP submittal addresses the
identified deficiencies, but was
submitted approximately 11 months
late, so the conditional approval is
treated as a disapproval.2
2 In reliance on the December 5, 2017 conditional
approval, allocations of CSAPR NOX Annual and
CSAPR SO2 Group 1 allowances for the 2017, 2018,
2019, and 2020 control periods were based on the
state-determined allocation methodology.
Following the state’s failure to submit by December
29, 2017, allocations of allowances for those
programs for the 2021 and 2022 control periods
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The EPA did not take action on the
previous version of 6 NYCRR Part 243,
‘‘Transport Rule NOX Ozone Season
Trading Program,’’ included in New
York’s December 1, 2015 submission.
Following that submission, the EPA
finalized the CSAPR Update rule3 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 rule
required 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 replaced the
ozone season budget for New York with
a lower budget developed to address the
revised and more stringent 2008 Ozone
NAAQS. In a July 14, 2016 letter to the
EPA, New York indicated that the State
would revise 6 NYCRR Part 243 to
conform with the final CSAPR Update.
As indicated earlier in this section New
York repealed 6 NYCRR Part 243 and
replaced the rule in its entirety with a
new rule, 6 NYCRR Part 243, ‘‘CSAPR
NOX Ozone Season Group 2 Trading
Program’’.
This direct final action approves into
New York’s SIP state-determined
allowance allocation procedures for
ozone-season NOX allowances that
would replace EPA’s default allocation
procedures for the control periods in
2021 and beyond. Additionally, EPA is
taking direct final action to approve 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
2023 and beyond. The approval of this
SIP revision does not alter any provision
of either the CSAPR NOX Ozone Season
Group 2 Trading Program, 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. The
FIP provisions requiring those units to
participate in the programs (as modified
by this SIP revision) remain in place.
Section II of this document
summarizes relevant aspects of the
CSAPR federal trading programs and
FIPs as well as the range of
opportunities states have to submit SIP
revisions to modify or replace the FIP
requirements while continuing to rely
on CSAPR’s trading programs to address
were based on the default allowance allocation
provisions in the federal trading program
regulations.
3 81 FR 74504 (October 26, 2016).
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the states’ obligations to mitigate
interstate air pollution. Section III
describes the specific criteria for
approval of such SIP revisions. Section
IV contains the EPA’s analysis of New
York’s SIP submittal, and Section V sets
forth EPA’s action on New York’s
submittals.
II. Background on CSAPR and CSAPRRelated SIP Revisions
The 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 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
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 the 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
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.
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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.
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,
as described in section III below. 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
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.
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).
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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 the 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 the 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, the 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 the EPA to complete the
process of allocating and recording
allowances for that control period to
those units will continue to apply,
unless the EPA’s approval of the SIP
revision provides otherwise.11
III. Criteria for Approval of CSAPRRelated SIP Revisions
Each CSAPR-related abbreviated or
full SIP revision must meet the
following general submittal criteria:
• Timeliness and completeness of SIP
submittal. If a state wants to replace the
default allowance allocation or
applicability provisions of a CSAPR
federal trading program, the complete
SIP revision must be submitted to the
EPA by December 1 of the year before
8 § 52.38(a)(5),
(b)(5), (b)(9); § 52.39(f), (i).
(b)(10(i); § 52.39(j).
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).
9 § 52.38(a)(6),
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the deadlines described below for
submitting allocation or auction
amounts to EPA for the first control
period for which the state wants to
replace the default allocation and/or
applicability provisions.12 This SIP
submission deadline is inoperative in
the case of a SIP revision that seeks only
to replace a CSAPR FIP and federal
trading program with a SIP and a
substantively identical state trading
program integrated with the federal
trading program. The SIP submittal
completeness criteria in section 2.1 of
appendix V to 40 CFR part 51 also
apply.
In addition to the general submittal
criteria, a CSAPR-related abbreviated or
full SIP seeking to address the allocation
or auction of emission allowances must
meet the following further criteria:
• Methodology covering all
allowances potentially requiring
allocation. For each federal trading
program addressed by a SIP revision,
the SIP revision’s allowance allocation
or auction methodology must replace
both the federal program’s default
allocations to existing units 13 at 40 CFR
97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a) as applicable,
and the federal trading program’s
provisions for allocating allowances
from the new unit set-aside (NUSA) for
the state at 40 CFR 97.411(b)(1) and
97.412(a), 97.511(b)(1) and 97.512(a),
97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and
97.812(a), as applicable.14 In the case of
a state with Indian country within its
borders, while the SIP revision may
neither alter nor assume the federal
program’s provisions for administering
the Indian country NUSA for the state,
the SIP revision must include
procedures addressing the disposition of
any otherwise unallocated allowances
from an Indian country NUSA that may
be made available for allocation by the
state after EPA has carried out the
Indian country NUSA allocation
procedures.15
• Assurance that total allocations will
not exceed the state budget. For each
federal trading program addressed by a
SIP revision, the total amount of
allowances auctioned or allocated for
each control period under the SIP
revision (prior to the addition by EPA of
any unallocated allowances from any
Indian country NUSA for the state)
generally may not exceed the state’s
emissions budget for the control period
less the sum of the amount of any
Indian country NUSA for the state for
the control period and any allowances
already allocated to the state’s units for
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the control period and recorded by
EPA.16 Under its SIP revision, a state is
free to not allocate allowances to some
or all potentially affected units, to
allocate or auction allowances to
entities other than potentially affected
units, or to allocate or auction fewer
than the maximum permissible quantity
of allowances and retire the remainder.
Under the CSAPR NOX Ozone Season
Group 2 Trading Program only,
additional allowances may be allocated
if the state elects to expand applicability
to non-EGUs that would have been
subject to the former NOX Budget
Trading Program established for
compliance with the NOX SIP Call.17
• Timely submission of statedetermined allocations to EPA. The SIP
revision must require the state to submit
to the EPA the amounts of any
allowances allocated or auctioned to
each unit for each control period (other
than allowances initially set aside in the
state’s allocation or auction process and
later allocated or auctioned to such
units from the set-aside amount) by the
following deadlines shown in Tables 1
and 2 below.18 Note that the submission
deadlines differ for amounts allocated or
auctioned to units considered existing
units for CSAPR purposes and amounts
allocated or auctioned to other units.
TABLE 1—CSAPR NOX ANNUAL, CSAPR NOX OZONE SEASON GROUP 1, CSAPR SO2 GROUP 1, AND CSAPR SO2
GROUP 2 TRADING PROGRAMS
Units
Year of the control period
Existing ............................................
2017 and 2018 ..............................
2019 and 2020 ..............................
2021 and 2022 ..............................
2023 and later years .....................
All years .........................................
Other ...............................................
Deadline for submission to EPA of allocations or auction results
June 1, 2016.
June 1, 2017.
June 1, 2018.
June 1 of the fourth year before the year of the control period.
July 1 of the year of the control period.
TABLE 2—CSAPR NOX OZONE SEASON GROUP 2 TRADING PROGRAM
Units
Year of the control period
Existing ............................................
2019 and 2020 ..............................
2021 and 2022 ..............................
2023 and 2024 ..............................
2025 and later years .....................
All years .........................................
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Other ...............................................
Deadline for submission to EPA of allocations or auction results
June 1, 2018.
June 1, 2019.
June 1, 2020.
June 1 of the fourth year before the year of the control period.
July 1 of the year of the control period.
• No changes to allocations already
submitted to EPA or recorded. The SIP
revision must not provide for any
change to the amounts of allowances
allocated or auctioned to any unit after
those amounts are submitted to EPA or
any change to any allowance allocation
determined and recorded by EPA under
12 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); § 52.39(e)(2), (f)(6),
(h)(2), (i)(6).
13 In the context of the approval criteria for
CSAPR-related SIP revisions, an ‘‘existing unit’’ is
a unit for which EPA has determined default
allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing
and amending CSAPR. Spreadsheets showing EPA’s
default allocations to existing units are posted at
https://www.epa.gov/csapr/unit-level-allocationsunder-csapr-transport-rule-fips-after-tolling and
https://www.epa.gov/airmarkets/final-cross-stateair-pollution-rule-update.
14 § 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii),
(b)(8)(iii), (b)(9)(iii); § 52.39(e)(1), (f)(1), (h)(1), (i)(1).
15 See §§ 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
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16 § 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A),
(b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A);
§ 52.39(e)(1)(i), (f)(1)(i), (h)(1)(i), (i)(1)(i).
17 § 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
18 § 52.38(a)(4)(i)(B)–(C), (a)(5)(i)(B)–(C),
(b)(4)(ii)(B)–(C), (b)(5)(ii)(B)–(C), (b)(8)(iii)(B)–(C),
(b)(9)(iii)(B)–(C); § 52.39(e)(1)(ii)–(iii), (f)(1)(ii)–(iii),
(h)(1)(ii)–(iii), (i)(1)(ii)–(iii).
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jbell on DSK3GLQ082PROD with RULES
the federal trading program
regulations.19
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also expands program
applicability as described below.20 Any
new definitions adopted in the SIP
revision (in addition to the federal
trading program’s definitions) may
apply only for purposes of the SIP
revision’s allocation or auction
provisions.21
In addition to the general submittal
criteria, a CSAPR-related abbreviated or
full SIP revision seeking to expand
applicability under their integrated state
trading programs (which is allowed for
CSAPR’s NOX ozone season programs
only) must meet the following further
criteria:
• Only EGUs with nameplate capacity
of at least 15 MWe.22 The SIP revision
may expand applicability only to
additional fossil fuel-fired boilers or
combustion turbines serving generators
producing electricity for sale, and only
by lowering the generator nameplate
capacity threshold used to determine
whether a particular boiler or
combustion turbine serving a particular
generator is a potentially affected unit.
The nameplate capacity threshold
adopted in the SIP revision may not be
less than 15 MWe.23 In addition or
alternatively, applicability may be
extended to non-EGUs that would have
been subject to the former NOX Budget
Trading Program established for
compliance with the NOX SIP Call.24
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also addresses the
allocation or auction of emission
allowances as described above.25
In addition to the general submittal
criteria and the other applicable criteria
described above, a CSAPR-related full
SIP revision must meet the following
further criteria:
• Complete, substantively identical
trading program provisions. The SIP
revision must adopt complete state
19 § 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D),
(b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D);
§ 52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
20 § 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8), (b)(9);
§ 52.39(e), (f), (h), (i).
21 § 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii),
(b)(8)(iv), (b)(9)(iv); § 52.39(e)(1), (f)(2), (h)(1), (i)(2).
22 Megawatts of electricity
23 § 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
24 § 52.38(b)(8)(ii), (b)(9)(ii).
25 § 52.38(b)(4), (b)(5), (b)(8), (b)(9).
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trading program regulations
substantively identical to the complete
federal trading program regulations at
40 CFR 97.402 through 97.435, 97.502
through 97.535, 97.602 through 97.635,
97.702 through 97.735, or 97.802
through 97.835, as applicable, except as
described above in the case of a SIP
revision that seeks to replace the default
allowance allocation and/or
applicability provisions.26
• Only non-substantive substitutions
for the term ‘‘State.’’ The SIP revision
may substitute the name of the state for
the term ‘‘State’’ as used in the federal
trading program regulations, but only to
the extent that EPA determines that the
substitutions do not substantively
change the trading program
regulations.27
• Exclusion of provisions addressing
units in Indian country. The SIP
revision may not impose requirements
on any unit in any Indian country
within the state’s borders and must not
include the federal trading program
provisions governing allocation of
allowances from any Indian country
NUSA for the state.28
IV. New York’s Submittals and EPA’s
Analysis
A. New York’s SIP Submittals
On November 30, 2018, New York
submitted to the EPA an abbreviated SIP
revision that, if approved, would
replace the default allowance allocation
provisions of the CSAPR NOX Ozone
Season Group 2, CSAPR NOX Annual,
and CSAPR SO2 Group 1 Trading
Programs for the state’s EGUs with
provisions establishing state-determined
allocations but would leave the
corresponding CSAPR FIPs and all other
provisions of the trading programs in
place.
New York’s allowance allocation
procedures for ozone season NOX
allowances would replace EPA’s default
allocation procedures for the control
periods in 2021 and beyond. New
York’s allowance allocation procedures
for annual NOX and SO2 allowances
would replace EPA’s default allocation
procedures for the control periods in
2023 and beyond.
The November 30, 2018 SIP submittal
includes the following adopted state
rules: 6 NYCRR Part 243, ‘‘CSAPR NOX
Ozone Season Group 2 Trading
Program,’’ 6 NYCRR Part 244, ‘‘CSAPR
NOX Annual Trading Program,’’ and 6
NYCRR Part 245, ‘‘CSAPR SO2 Group 1
26 § 52.38(a)(5),
(b)(5), (b)(9); § 52.39(f), (i).
(b)(5)(iv), (b)(9)(v);
27 §§ 52.38(a)(5)(iii),
52.39(f)(3), (i)(3).
28 §§ 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi);
52.39(f)(4), (i)(4).
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Trading Program.’’ Previous versions of
the rules, i.e., 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 Group 1 Trading
Program,’’ have been repealed and
replaced in their entirety with the new
rules. Attendant revisions were made to
6 NYCRR Part 200, Subpart 200.9,
‘‘General Provisions, Referenced
Material,’’ to update the list of
referenced material that are cited in the
amended New York regulations. The
regulations were adopted on November
11, 2018, and effective on January 2,
2019. New York’s Parts 243, 244 and
245, submitted to EPA on November 30,
2018, allow the State to replace the
provisions of the CSAPR NOX Ozone
Season Group 2, CSAPR NOX Annual,
and CSAPR SO2 Group 1 trading
program allocation methodology with
its own methodology. Parts 243, 244 and
245 apply to units that serve an
electrical generator with a nameplate
capacity equal to or greater than 25
megawatts of electrical output and sell
any amount of electricity. The control
period for Part 243 runs from May 1 to
September 30. The control periods for
Parts 244 and 245 run from January 1 to
December 31. DEC would allocate
CSAPR NOX Ozone Season Group 2
allowances beginning with the 2021
control period; and CSAPR NOX Annual
and SO2 Group 1 allowances beginning
with the 2023 control period.
For existing units, New York’s
allocation methodology is based on the
average of recent emissions (i.e., the
average of the three last years for which
data is available) from all New York
Transport Rule units. Five percent of the
statewide budgets for annual emissions
of SO2, annual emissions of NOX, and
ozone season emissions of NOX would
be set aside for new units, and the
remainder of the statewide budgets, but
at least ten percent, will be allocated to
the Energy Efficiency and Renewable
Energy Technology (EERET) account. If
the allocation to the EERET account
would be less than the prescribed
minimum after allocations to existing
units based on the 3-year average of
emissions and an allocation of five
percent to the new unit set-aside,
allocations to existing units would be
reduced proportionally by the amounts
necessary to ensure that ten percent of
the budget is allocated to the EERET
account.
The DEC will distribute all
allowances at no cost except for
allowances held in the EERET account,
which will be administered by the New
York State Energy Research and
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Development Authority (NYSERDA).
The sale of allowances by NYSERDA
will be used to fund energy efficiency
projects, renewable energy, or clean
energy technology. Any EERET
allowances that are not sold or
distributed by NYSERDA within 12
months of the initial allocation to the
EERET account will be returned to the
DEC for retirement or reallocation.
On July 23, 2015, New York
submitted a SIP submittal, which
included a revised version of 6 NYCRR
Part 200 (Subpart 200.1) that was
adopted by the State. The definition for
‘‘Air contamination source or emission
source’’ under Subdivision 200.1(f) was
revised to address the repeal of 6
NYCRR Part 203, ‘‘Indirect Sources of
Air Contamination’’. The regulation was
adopted on April 18, 2013, a notice of
adoption was filed on April 19, 2013,
and the regulation became effective on
May 19, 2013.
B. EPA’s Analysis of New York’s
Submittals
A. November 30, 2018 Submittal
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1. Timeliness and Completeness of New
York’s SIP Submittal
New York’s SIP revision seeks to
establish state-determined allocations
starting with the 2021 control period for
the CSAPR NOX Ozone Season Group 2
trading program and the 2023 control
period for the CSAPR NOX Annual and
SO2 Group 1 trading programs. For the
NOX Annual and SO2 Group 1 trading
programs, under 40 CFR 52.38(a)(4)(i)(B)
and 52.39(e)(1)(ii), the deadline for
submission of state-determined
allocations for the 2023 control periods
is June 1, 2019, which under
52.38(a)(4)(ii) and 52.39(e)(2) makes
December 1, 2018, the deadline for
submission to the EPA of a complete SIP
revision establishing state-determined
allocations for those control periods. For
the NOX Ozone Season Group 2 trading
program, under 40 CFR
52.38(b)(8)(iii)(B) the allocation
submission deadline for the 2021
control period is June 1, 2019, triggering
a December 1, 2018 deadline for a SIP
submittal under 40 CFR 52.38(b)(8)(iv).
New York submitted its SIP revision to
EPA by letter dated and delivered
electronically on November 30, 2018,
and EPA has determined that the
submittal complies with the applicable
minimum completeness criteria of 40
CFR part 51, Appendix V, Section 2.1.
New York has therefore met the
requirements for timeliness and
completeness criteria of its CSAPR SIP
submittal for all three programs.
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2. Methodology Covering All
Allowances Potentially Requiring
Allocation
Sections 243.3 through 243.6, 244.3
through 244.6, and 245.3 through 245.6
of the New York rules provide the
allocation methodology adopted by New
York in the SIP revision. Sections 243.3
through 243.6 replace the provisions of
40 CFR 97.811(a), 97.811(b)(1), and
97.812(a) for allocations of CSAPR NOX
Ozone Season Group 2 allowances;
Sections 244.3 through 244.6 replace the
provisions of 40 CFR 97.411(a),
97.411(b)(1), and 97.412(a) for
allocations of NOX Annual allowances;
and Sections 245.3 through 245.6
replace the provisions of 40 CFR
97.611(a), 97.611(b)(1), and 97.612(a) for
allocations of SO2 Group 1 allowances.
New York’s methodology addresses
allocation of allowances that under the
default allocation provisions for the
federal trading programs would be
allocated to existing units as well as
allowances that would be allocated to
new units from the new unit set-asides
established for New York under the
federal trading programs. New York’s
rules also include provisions for the
disposition of any otherwise
unallocated Indian country new unit
set-aside allowances. New York’s rules
therefore meet the conditions under 40
CFR 52.38(a)(4)(i), 52.38(b)(8)(iii),
52.39(e)(1), 97.412(b)(10)(ii),
97.612(b)(10)(ii), and 97.812(b)(10)(ii)
that the state’s allocation methodology
must cover all allowances potentially
requiring allocation by the state.
3. Assurance That Total Allocations
Will Not Exceed the State Budget
Sections 243.3, CSAPR NOX Ozone
Season Group 2 Trading Program
budgets, 244.3, CSAPR NOX Annual
Trading Program budgets, and 245.3,
CSAPR SO2 Group 1 Trading Program
budgets, set forth the total amounts of
CSAPR NOX Ozone Season Group 2
allowances, CSAPR NOX Annual
allowances, and CSAPR SO2 Group 1
allowances to be allocated to New York
units for each control period under the
state trading programs.
Section 243.3 provides for allowance
allocations equal to New York’s NOX
Ozone Season Group 2 trading budget at
40 CFR 97.810(a)(15), which is 5,135
tons, less the amount of the Indian
country new unit set-aside (5 tons).
Section 244.3 provides for allowance
allocations equal to New York’s NOX
Annual trading budget at 40 CFR
97.410(a)(14), which is 21,722 tons, less
the amount of the Indian country new
unit set-aside (22 tons). Section 245.3
provides for allowance allocations equal
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22977
to New York’s SO2 Group 1 budget at 40
CFR 610(a)(9), which is 27,556 tons, less
the amount of the Indian country new
unit set-aside (28 tons). EPA has not yet
allocated or recorded any allowances to
New York units for the control periods
for which New York’s rules would
establish a state-determined allocation
methodology. The allocation
methodology in New York’s SIP
revision, therefore, meets the conditions
under 40 CFR 52.38(a)(4)(i)(A),
52.38(b)(8)(iii)(A), and 52.39(e)(1)(i) that
the total amount of allowances allocated
under the SIP revision may not exceed
the state’s budget for the control period
less the amount of the Indian country
NUSA for the state and any allowances
already allocated and recorded by the
EPA.
4. Timely Submission of StateDetermined Allocations to EPA
Sections 243.4, 244.4, and 245.4
provide for allowance allocations for
existing units to be submitted to the
EPA. With respect to CSAPR NOX
Ozone Season Group 2 allowance
allocations for existing units, Section
243.4 provides that New York will
submit allocations for the 2021 and
2022 control periods by June 1, 2019;
the state will submit allocations for the
2023 and 2024 control periods by June
1, 2020; and by June 1, 2021, and June
1st of each year thereafter, the state will
submit allocations for the control period
in the fourth year following the year of
the submission deadline. With respect
to CSAPR NOX Annual and CSAPR SO2
Group 1 allowance allocations for
existing units, Sections 244.4 and 245.4
provide that the state will submit
allocations by June 1, 2019,29 and by
June 1st of each year thereafter, for the
control period in the fourth year
following the year of the submission
deadline.
With respect to NUSA allowance
allocations under all three programs,
Sections 243.5(a)(7), 244.5(a)(7), and
245.5(a)(7) indicate that the state will
submit state-determined allocations to
the EPA by July 1st of the control
period.
New York’s SIP revision meets the
criteria under 40 CFR 52.38(a)(4)(i)(B)–
(C), 52.38(b)(8)(iii)(B)–(C), and
52.39(e)(1)(ii)–(iii) requiring that the SIP
revision provide for submission of statedetermined allowance allocations to
EPA by the deadlines specified in those
provisions.
29 Allowance allocations for the 2023 control
period would be submitted by June 1, 2019.
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5. No Changes to Allocations Already
Submitted to EPA or Recorded
The New York rules include no
provisions allowing alteration of
allocations after the allocation amounts
have been provided to the EPA and no
provisions allowing alteration of any
allocations made and recorded by the
EPA under the federal trading program
regulations, thereby meeting the
condition under 40 CFR
52.38(a)(4)(i)(D), 52.38(b)(8)(iii)(D), and
52.39(e)(1)(iv).
6. No Other Substantive Changes to
Federal Trading Program Provisions
In addition to the allowance
allocation provisions in New York’s
rules, Sections 243.1, 244.1 and 245.1
address applicability and Sections
243.2, 244.2, and 245.2 set forth relevant
definitions. The applicability provisions
and most of the definitions directly
reference the corresponding provisions
in the federal trading program
regulations, and the remaining
definitions do not conflict with the
definitions in the federal trading
program regulations. The EPA has
therefore determined that the SIP
revision meets the requirements of 40
CFR 52.38(a)(4), 52.38(b)(8), and
52.39(e) by making no substantive
changes to the federal trading program
regulations beyond the provisions
addressing allowance allocations.
Finally, as stated in section I, the EPA
conditionally approved previous
versions of 6 NYCRR Parts 200, 244 and
245 in an action published on December
5, 2017 (82 FR 57362), but the state did
not submit a revised SIP that addressed
EPA-identified deficiencies within the
required time frame New York’s
November 30, 2018 SIP revision
approved in this direct final action does
fully address the deficiencies that the
EPA identified in the December 5, 2017
final action.
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7. Removal of CAIR Trading Program
Provisions
As discussed earlier, New York’s
CSAPR rules were adopted to replace
previous versions of 6 NYCRR Part 243,
6 NYCRR Part 244, and 6 NYCRR Part
245 which implemented New York’s
discontinued CAIR trading programs.
For the reasons discussed below, the
EPA is also taking direct final action to
approve the removal of New York’s
CAIR rules from the SIP. The rules being
removed from the SIP are 6 NYCRR Part
243, ‘‘CAIR NOX Ozone Season Trading
Program,’’; 6 NYCRR Part 244, ‘‘CAIR
30 EPA solicited comment on the interim final
rule and subsequently issued a final rule affirming
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NOX Annual Trading Program,’’; and 6
NYCRR Part 245, ‘‘CAIR SO2 Trading
Program.’’ All three of the CAIR trading
programs have been discontinued and
are no longer operated by EPA.
Electricity generating units (EGUs) in
New York now participate in the CSAPR
NOX Ozone Season Group 2 Trading
Program, CSAPR NOX Annual Trading
Program, and CSAPR SO2 Group 1
Trading Program.
In 2005, EPA promulgated CAIR (70
FR 25162, May 12, 2005) to address
transported emissions that significantly
contributed to downwind states’
nonattainment and interfered with
maintenance of the 1997 ozone and
PM2.5 NAAQS. CAIR required 28 states,
including New York, to revise their SIPs
to reduce emissions of NOX and SO2,
precursors to the formation of ambient
ozone and PM2.5. Under CAIR, EPA
provided model state rules for separate
cap-and-trade programs for annual NOX,
ozone season NOX, and annual SO2.
New York submitted, and EPA
approved, a CAIR SIP revision based on
the model state rules establishing CAIR
state trading programs for annual SO2,
annual NOX, and ozone season NOX
emissions, with certain non-EGUs
included in the state’s CAIR ozone
season NOX trading program. See 73 FR
4109 (January 24, 2008).
The United States Court of Appeals
for the District of Columbia Circuit (D.C.
Circuit) initially vacated CAIR in 2008,
but ultimately remanded the rule to EPA
without vacatur to preserve the
environmental benefits provided by
CAIR. North Carolina v. EPA, 531 F.3d
896, modified, 550 F.3d 1176 (2008).
The ruling allowed CAIR to remain in
effect temporarily until a replacement
rule consistent with the court’s opinion
was developed. While EPA worked on
developing a replacement rule, the CAIR
program continued as planned with the
NOX annual and ozone season programs
beginning in 2009 and the SO2 annual
program beginning in 2010.
On August 8, 2011 (76 FR 48208),
acting on the D.C. Circuit’s remand, EPA
promulgated CSAPR to replace CAIR in
order to address the interstate transport
of emissions contributing to
nonattainment and interfering with
maintenance of the two air quality
standards covered by CAIR as well as
the 2006 PM2.5 NAAQS. CSAPR
promulgated FIPs requiring EGUs in
affected states, including New York, to
participate in federal trading programs
to reduce annual SO2, annual NOX, and/
or ozone season NOX emissions. The
rule also contained provisions that
would sunset CAIR-related obligations
on a schedule coordinated with the
implementation of the CSAPR
compliance requirements.
CSAPR was intended to become
effective January 1, 2012; however, the
timing of CSAPR’s implementation was
impacted by subsequent litigation.
CSAPR implementation was stayed
during the course of litigation in the
D.C. Circuit and the Supreme Court,
until the D.C. Circuit lifted the stay on
October 23, 2014. EPA subsequently
issued an interim final rule on
December 3, 2014 (79 FR 71663), setting
the updated effective date of CSAPR as
January 1, 2015.30 In accordance with
the interim final rule, EPA stopped
administering the CAIR state and federal
trading programs with respect to
emissions occurring after December 31,
2014, and EPA began implementing
CSAPR on January 1, 2015.
EPA has not administered the CAIR
trading programs since January 1, 2015,
when the CSAPR trading programs
replaced the CAIR trading programs.
The provisions in New York’s SIP
which were promulgated and approved
for purposes of implementing the CAIR
trading programs in the State have not
been implemented since that time and
cannot be implemented now or in the
future. Because the EPA no longer
administers the CAIR trading programs,
and therefore New York’s own CAIR
trading program regulations cannot be
implemented, removing New York’s
CAIR rules from the state’s SIP will have
no consequences for any source’s
operations or emissions or for the
attainment and maintenance of the
NAAQS in any area, now or in the
future. Accordingly, removal of the
CAIR rules does not impact the state’s
continued compliance with section
CAA 110(a)(2)(D)(i)(I) for any NAAQS.
Moreover, consistent with CAA section
110(l), the EPA has determined that the
removal of New York’s CAIR trading
program rules will not interfere with
any applicable requirement concerning
attainment and reasonable further
progress, or any other applicable
requirement of the Clean Air Act.
Current emission levels in New York
further demonstrate that the CAIR
trading programs are not influencing
and would not influence affected
sources’ operations. As shown in Table
3 below, current emissions levels are
significantly below the CAIR budgets
even while the CAIR trading programs
are no longer being implemented.
the amended compliance schedule after
consideration of comments received. 81 FR 13275
(March 14, 2016).
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TABLE 3—COMPARISON OF NEW YORK CAIR BUDGETS AND 2018 EMISSIONS
[Tons]
CAIR phase I
budget 1
Type of emissions
Ozone season NOX 3 ...................................................................................................................
Annual NOX .................................................................................................................................
SO2 ..............................................................................................................................................
CAIR phase 2
budget 1
31,091
45,617
135,139
2018
emissions 2
27,652
38,014
94,597
5,790
9,706
4,889
1 The CAIR budget amounts are from the EPA’s proposal to approve New York’s CAIR regulations into the SIP. 72 FR 55723 (Oct. 1, 2007);
see also 73 FR 4109 (Jan. 24, 2008) (finalizing approval).
2 The 2018 emissions totals are from the EPA’s Air Markets Program Database, https://ampd.epa.gov.
3 The ozone season NO budgets and emissions include both EGUs and non-EGUs meeting the applicability criteria for New York’s former
X
NOX Budget Trading Program.
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EGUs in New York also remain
subject to FIPs, as modified by the
abbreviated SIPs approved in this direct
final action, requiring the sources to
particulate in annual NOX, annual SO2,
and ozone season NOX 31 federal trading
programs under CSAPR and the CSAPR
Update that limit emissions from such
sources in the State. EGUs also continue
to be subject to part 75 monitoring
requirements under the current CSAPR
trading program rules.
The EPA notes that New York’s CAIR
trading program for ozone season NOX
addressed not only the state’s transport
obligation under the 1997 ozone
NAAQS, but also New York’s ongoing
obligations under the NOX SIP Call.32
Under the NOX SIP Call the New York
SIP must (1) include enforceable control
measures for ozone season NOX mass
emissions from large EGUs and large
non-EGUs and (2) require those sources
to monitor and report ozone season NOX
emissions, which may be in accordance
with 40 CFR part 75. See 40 CFR
51.121(f)(2) and (i).
With respect to the NOX SIP Call
requirement that the SIP include
enforceable control measures to limit
ozone season NOX, New York is
currently subject to the federal CSAPR
trading program for ozone season NOX
that addresses these requirements as to
EGUs, but because New York’s nonEGUs are not subject to that CSAPR
trading program, the state must meet
this requirement for non-EGUs through
other SIP provisions. New York’s SIP
31 The D.C. Circuit ultimately remanded New
York’s CSAPR Phase 2 budget for ozone season
NOX, finding that the rulemaking record did not
support EPA’s determination of a transport
obligation under the 1997 ozone NAAQS for New
York. EME Homer City Generation, L.P., v. EPA, 795
F.3d 118, 129–30, (2015). In response, EPA
withdrew New York’s remanded budget in the
CSAPR Update rulemaking; concurrently, however,
EPA promogulated a new emission budget to
address the 2008 ozone NAAQS, which replaced
the invalidated CSAPR budget intended to address
the 1997 ozone NAAQS. 81 FR 74524. Thus, EGUs
in New York remain subject to a CSAPR trading
program for ozone-season NOX.
32 The NO SIP Call addresses states’ transport
X
obligations under the 1979 ozone NAAQS.
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has not included enforceable control
measures for these non-EGUs since
2015, when EPA began implementing
the CSAPR trading programs and
stopped administering the CAIR trading
programs. Thus, this gap in SIP coverage
was caused by EPA’s discontinuation of
the CAIR trading programs and predates
the SIP submittal at issue in this action.
Removing the state’s CAIR rules from
the SIP at this time will not exacerbate
or otherwise affect this pre-existing lack
of enforceable control measures in the
SIP, and as noted above, the removal
will have no impact on source
operations or emissions.
As to the requirement for sources to
monitor and report ozone season NOX
emissions under the NOX SIP Call,
removal of the state’s CAIR rules from
the state’s SIP does not eliminate the
state’s current requirements for EGUs
and non-EGUs to monitor and report
their ozone season NOX emissions, as
required under the NOX SIP Call. New
York’s SIP still includes the state’s NOX
Budget Trading Program rules, and
those rules continue to require, at 6
NYCRR Part 204, that EGUs and nonEGUs monitor and report ozone season
NOX emissions under part 75 even
though EPA is no longer administering
the trading program provisions of the
state’s rules. Thus, removal of the state’s
CAIR rules for ozone season NOX
emissions from New York’s SIP will not
eliminate the provisions for monitoring
that are required by the NOX SIP Call
because the SIP will still include
equivalent ozone season NOX
monitoring provisions in the state’s NOX
Budget Trading Program rules.
Accordingly, EPA finds that it is
appropriate to approve the rescission of
New York’s CAIR rules from the SIP.
B. July 23, 2015 Submittal
The July 23, 2015 New York SIP
submittal included a revised version of
6 NYCRR Part 200 (Subpart 200.1),
which modified the definition of ‘‘Air
contamination source or emission
source’’ at Subdivision 200.1(f). The
regulation was adopted on April 18,
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2013, the notice of adoption was filed
on April 19, 2013 and regulation
became effective on May 19, 2013. The
SIP submittal was deemed
administratively complete by operation
of law on January 23, 2016. The EPA is
taking direct final action to approve the
July 23, 2015 SIP submittal.
V. EPA’s Action on New York’s
Submittals
The EPA is taking direct final action
to approve the New York SIP revision
submitted on November 30, 2018
concerning allocations to New York
units of CSAPR NOX Ozone Season
Group 2 allowances for the control
periods in 2021 and beyond and of
CSAPR NOX Annual allowances and
CSAPR SO2 Group 1 allowances for the
control periods in 2023 and beyond.
This rule approves into the New York
SIP amendments to 6 NYCRR Parts 243,
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. The EPA is also taking direct final
action approving the attendant revisions
to 6 NYCRR Part 200 (Subpart 200.9) to
update the list of referenced materials
cited in the amended New York
regulations. The EPA is taking direct
final action to approve the New York
SIP revision submitted on July 23, 2015,
which included a revised version of 6
NYCRR Part 200 (Subpart 200.1) to
address updated definitions associated
with a repeal of 6 NYCRR Part 203,
‘‘Indirect Sources of Air
Contamination’’.
The EPA is also taking direct final
action to repeal from the SIP previous
versions of 6 NYCRR Part 243, 6 NYCRR
Part 244, and 6 NYCRR Part 245 which
implemented New York’s discontinued
CAIR trading program. The rules being
repealed from the SIP are 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.’’
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Following the approval into the SIP of
the revisions to 6 NYCRR Parts 200, 243,
244, and 245, allocations of CSAPR NOX
Ozone Season Group 2 allowances,
CSAPR NOX Annual allowances, and
CSAPR SO2 Group 1 allowances will be
made according to the provisions of
New York’s SIP instead of 40 CFR
97.411(a), 97.411(b)(1), 97.412(a),
97.611(a), 97.611(b)(1), 97.612(a), CFR
97.811(a), 97.811(b)(1), and 97.812(a).
The EPA’s action on this SIP revision
does not alter any provisions of the
federal CSAPR NOX Ozone Season
Group 2 Trading Program, 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. The EPA’s is
approving Parts 200, 243, 244 and 245
because New York’s rules 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.A
above.
VI. Incorporation By Reference
In this rule, the EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of revisions to 6 NYCRR
Parts 200, Subpart 200.1, entitled
‘‘General Provisions, Definitions,’’
adopted April 18, 2013; 6 NYCRR Part
200, Subpart 200.9, entitled ‘‘General
Provisions, Referenced Material,’’
adopted on November 11, 2018; 6
NYCRR Part 243, entitled ‘‘CSAPR NOX
Ozone Season Group 2 Trading
Program,’’ adopted November 11, 2018;
6 NYCRR Part 244, entitled ‘‘CSAPR
NOX Annual Trading Program,’’ adopted
November 11, 2018; and NYCRR Part
245, entitled ‘‘CSAPR SO2 Group 1
Trading Program,’’ adopted November
11, 2018. The EPA has made, and will
continue to make, these materials
generally available through
www.regulations.gov, and at the EPA
Region 2 Office. Copies of materials
incorporated may be inspected at the
Environmental Protection Agency,
Region 2, Air Programs Branch, 290
Broadway, New York, New York 10007.
Please contact the person identified in
the FOR FURTHER INFORMATION CONTACT
section of this preamble for more
information. Therefore, these materials
have been approved by the EPA for
inclusion in the SIP, have been
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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 in the next
update of the SIP compilation.33
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 proposed 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,
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
33 62
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• 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 July 22, 2019.
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.
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Dated: May 2, 2019.
‘‘Title 6, Part 200, Subpart 200.1’’, ‘‘Title
6, Part 200, Subpart 200.9’’, ‘‘Title 6,
Part 243’’, ‘‘Title 6, Part 244’’, and ‘‘Title
6, Part 245’’ to read as follows:
PART 52- APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Peter D. Lopez,
Regional Administrator, Region 2.
Part 52 chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
1. The authority citation for part 52
continues to read as follows:
■
§ 52.1670
*
Authority: 42.U.S.C. 7401 et seq.
*
Identification of plan.
*
*
*
(c) * * *
Subpart HH—New York
2. In § 52.1670, paragraph (c) is
amended by revising the table entries
■
EPA–APPROVED NEW YORK STATE REGULATIONS AND LAWS
State citation
Title/subject
State effective
date
EPA approval
date
.
Title 6, Part 200, Subpart
200.1.
General Provisions, Definitions.
05/19/2013
5/21/19
*
Title 6, Part 200, Subpart
200.9.
*
*
General Provisions, Referenced Material.
*
01/02/2019
5/21/19
*
Title 6, Part 243 ...............
*
*
CSAPR NOX Ozone Season Group 2 Trading
Program.
CSAPR NOX Annual
Trading Program.
CSAPR SO2 Group 1
Trading Program.
* ........................................
*
01/02/2019
5/21/19
01/02/2019
5/21/19
01/02/2019
*
5/21/19
**
Title 6, Part 244 ...............
Title 6, Part 245 ...............
* ........................................
*
*
*
*
*
*
*
*
Comments
The word odor is removed from the Subpart 200.1(d)
definition of ‘‘air contaminant or air pollutant.’’
Redesignation of non-attainment areas to attainment
areas (200.1(av)) does not relieve a source from
compliance with previously applicable requirements as per letter of Nov. 13, 1981 from H.
Hovey, NYSDEC. Changes in definitions are acceptable to EPA unless a previously approved definition is necessary for implementation of an existing SIP regulation.
EPA is including the definition of ‘‘federally enforceable’’ with the understanding that (1) the definition
applies to provisions of a Title V permit that are
correctly identified as federally enforceable, and
(2) a source accepts operating limits and conditions to lower its potential to emit to become a
minor source, not to ‘‘avoid’’ applicable requirements.
• EPA is approving incorporation by reference of
those documents that are not already federally enforceable.
• EPA approval finalized at [insert Federal Register
citation]
*
*
*
• EPA is approving reference documents that are
not Federally enforceable.
• EPA approval finalized at [insert Federal Register
citation].
*
*
*
• EPA approval finalized at [insert Federal Register
citation]
• EPA approval finalized at [insert Federal Register
citation]
• EPA approval finalized at [insert Federal Register
citation]
*
*
*
[FR Doc. 2019–10479 Filed 5–20–19; 8:45 am]
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22982
Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2018–0609; FRL–9993–90–
Region 4]
Air Plan Approval; Kentucky: Jefferson
County Process Operations
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve changes to the Jefferson County
portion of the Kentucky State
Implementation Plan (SIP), submitted
by the Commonwealth of Kentucky,
through the Energy and Environment
Cabinet (Cabinet), by way of a letter
dated March 15, 2018. The SIP revision
was submitted by the Cabinet on behalf
of the Louisville Metro Air Pollution
Control District (District) and makes
minor ministerial amendments to
regulations regarding new and existing
process operations.
DATES: This rule will be effective June
20, 2019.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R04–OAR–2018–0609. All
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not 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 either
electronically through
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air and Radiation Division
(formerly the Air, Pesticides and Toxics
Management Division), U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. EPA requests that
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Andres Febres, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air and
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SUMMARY:
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Radiation Division, Region 4, U.S.
Environmental Protection Agency, 61
Forsyth Street SW, Atlanta, Georgia
30303–8960. The telephone number is
(404) 562–8966. Mr. Febres can also be
reached via electronic mail at febresmartinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
EPA is taking final action to approve
changes to the Jefferson County portion
of the Kentucky SIP that were provided
to EPA through a letter dated March 15,
2018.1 EPA is finalizing approval of the
portions of this SIP revision that make
changes to the District’s Regulation
6.09—Standards of Performance for
Existing Process Operations, and
Regulation 7.08—Standards of
Performance for New Process
Operations.2 The March 15, 2018, SIP
revision makes minor and ministerial
changes that do not alter the meaning of
these regulations but rather are intended
to clarify the applicability of these
regulations, as well as reduce
redundancy in the particulate matter
(PM) and opacity standards. The SIP
revision updates the current SIPapproved versions of Regulation 6.09
(version 6) and Regulation 7.08 (version
3) to version 7 and version 4,
respectively.
In a notice of proposed rulemaking
(NPRM) published on March 4, 2019 (84
FR 7313), EPA proposed to approve the
aforementioned changes to Regulations
6.09 and 7.08 in the Jefferson County
portion of the Kentucky SIP, which
address the control of emissions from
existing and new process operations,
respectively. The NPRM provides
additional details regarding EPA’s
action. Comments on the NPRM were
due on or before April 3, 2019. EPA
received no comments on the proposed
action, so EPA is now taking final action
to approve the above-referenced
revision.
II. Incorporation by Reference
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of Jefferson County’s
Regulation 6.09, Standards of
Performance for Existing Process
1 EPA notes that the Agency received the SIP
revision on March 23, 2018.
2 EPA also notes that the Agency received several
other revisions to the Jefferson County portion of
the Kentucky SIP submitted with the same March
15, 2018, cover letter. EPA will be considering
action on the remaining revisions in separate
actions.
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Operations, version 7, and Regulation
7.08, Standards of Performance for New
Process Operations, version 4, both
State effective January 17, 2018. EPA
has made, and will continue to make,
these materials generally available
through www.regulations.gov and at the
EPA Region 4 Office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
Therefore, these materials have been
approved by EPA for inclusion in the
State implementation plan, have been
incorporated by reference 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 in the next
update to the SIP compilation.3
III. Final Action
EPA is taking final action to approve
changes to the Jefferson County portion
of the Kentucky SIP that were provided
to EPA through a letter dated March 15,
2018. Specifically, EPA is approving the
District’s Regulation 6.09, version 7, and
Regulation 7.08, version 4. The March
15, 2018, SIP revision makes minor and
ministerial changes and is intended to
clarify the applicability of these
regulations, as well as reduce
redundancy in the PM and opacity
standards. These rule adoptions do not
contravene Federal permitting
requirements or existing EPA policy,
nor will they impact the National
Ambient Air Quality Standards or
interfere with any other applicable
requirement of the Act.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. 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,
3 See
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21MYR1
]]>Agencies
[Federal Register Volume 84, Number 98 (Tuesday, May 21, 2019)]
[Rules and Regulations]
[Pages 22972-22982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10479]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2019-0157; FRL-9993-69-Region 2]
Approval of Air Quality Implementation Plans; New York; Cross-
State Air Pollution Rule; NOX Ozone Season Group 2, NOX Annual, and SO2
Group 1 Trading Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to approve 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 ozone
season emissions of nitrogen oxides (NOX), annual emissions
of NOX, and annual emissions of sulfur dioxide
(SO2). This action approves into New York's SIP the State's
regulations that replace the default allowance allocation provisions of
the CSAPR federal trading programs for ozone season NOX,
annual NOX, and annual SO2 emissions. The
approval is being issued as a direct final rule without a prior
proposed rule because EPA views it as uncontroversial and does not
anticipate adverse comment.
DATES: This direct final rule will be effective on June 20, 2019,
without further notice, unless the EPA receives adverse comment by June
20, 2019. If EPA receives adverse comment, we will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2019-0157, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or withdrawn. 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: 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
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA taking today?
[[Page 22973]]
II. Background on CSAPR and CSAPR-Related SIP Revisions
III. Criteria for Approval of CSAPR-Related SIP Revisions
IV. New York's Submittals and EPA's Analysis
V. EPA's Action on New York's Submittals
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. What action is EPA taking today?
The EPA is taking direct final action to approve New York's
November 30, 2018 SIP submittal concerning CSAPR \1\ trading programs
for ozone-season emissions of NOX, annual emissions of
NOX, and annual emissions of 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
Ozone Season Group 2 Trading Program, 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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
The New York State Department of Environmental Conservation (DEC)
amended portions of Title 6 of the New York Codes, Rules and
Regulations (6 NYCRR) 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 243, ``Transport Rule
NOX Ozone Season Trading Program,'' has been repealed and
replaced in its entirety with a new rule, 6 NYCRR Part 243, ``CSAPR
NOX Ozone Season Group 2 Trading Program.'' 6 NYCRR Part
244, ``Transport Rule NOX Annual Trading Program,'' has been
repealed and replaced in its entirety with a new rule, 6 NYCRR Part
244, ``CSAPR NOX Annual Trading Program.'' 6 NYCRR Part 245,
``Transport Rule SO2 Group 1 Trading Program,'' has also
been repealed and replaced in its entirety with a new rule, 6 NYCRR
Part 245, ``CSAPR SO2 Group 1 Trading Program.'' Attendant
revisions were made to 6 NYCRR Part 200, ``General Provisions,'' to
update the list of referenced materials at Subpart 200.9 that are cited
in the amended New York regulations. The EPA is taking direct final
action to approve into the New York SIP the revised versions of 6 NYCRR
Parts 200 (Subpart 200.9), 243, 244, and 245 included in the November
30, 2018 submission.
The EPA is also taking direct final action to repeal from the SIP
previous versions of 6 NYCRR Part 243, 6 NYCRR Part 244, and 6 NYCRR
Part 245 which implemented New York's discontinued CAIR program. New
York adopted amendments to 6 NYCRR Part 243, 6 NYCRR Part 244, and 6
NYCRR Part 245 that repealed and replaced CAIR trading program rules
with CSAPR trading rules on November 10, 2015. Subsequently, on
November 11, 2018, New York adopted amendments to 6 NYCRR Part 243, 6
NYCRR Part 244, and 6 NYCRR Part 245 that repealed and replaced the
November 15, 2015 adopted rules that implemented New York's CSAPR
program with new versions of New York's CSAPR trading program rules.
The rules being repealed from the SIP are 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.''
The EPA is also taking direct final action to approve into the SIP
a revised version of 6 NYCRR Part 200 (Subpart 200.1) that was
submitted to the EPA on July 23, 2015 to address updated definitions at
Part 200.1(f) that were associated with a repeal of 6 NYCRR Part 203,
``Indirect Sources of Air Contamination.''
The revised versions of 6 NYCRR Parts 200 (Subpart 200.9), 243,
244, and 245 included in the November 30, 2018 SIP submission replace
the previous versions of those rules that were included in a December
1, 2015 SIP submission. The EPA identified deficiencies in the December
1, 2015 submission but on November 20, 2017 conditionally approved
those previous versions of Parts 200, 244, and 245 (but not Part 243)
into the SIP (82 FR 57362, December 5, 2017). In a July 6, 2017 letter
to the EPA, New York committed to submitting a SIP revision that
addressed the identified deficiencies by December 29, 2017. However,
New York's response to the conditional approval was not submitted to
the EPA by December 29, 2017. The November 30, 2018 SIP submittal
addresses the identified deficiencies, but was submitted approximately
11 months late, so the conditional approval is treated as a
disapproval.\2\
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\2\ In reliance on the December 5, 2017 conditional approval,
allocations of CSAPR NOX Annual and CSAPR SO2
Group 1 allowances for the 2017, 2018, 2019, and 2020 control
periods were based on the state-determined allocation methodology.
Following the state's failure to submit by December 29, 2017,
allocations of allowances for those programs for the 2021 and 2022
control periods were based on the default allowance allocation
provisions in the federal trading program regulations.
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The EPA did not take action on the previous version of 6 NYCRR Part
243, ``Transport Rule NOX Ozone Season Trading Program,''
included in New York's December 1, 2015 submission. Following that
submission, the EPA 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 rule required
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 replaced the ozone season budget for New York with a
lower budget developed to address the revised and more stringent 2008
Ozone NAAQS. In a July 14, 2016 letter to the EPA, New York indicated
that the State would revise 6 NYCRR Part 243 to conform with the final
CSAPR Update. As indicated earlier in this section New York repealed 6
NYCRR Part 243 and replaced the rule in its entirety with a new rule, 6
NYCRR Part 243, ``CSAPR NOX Ozone Season Group 2 Trading
Program''.
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\3\ 81 FR 74504 (October 26, 2016).
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This direct final action approves into New York's SIP state-
determined allowance allocation procedures for ozone-season
NOX allowances that would replace EPA's default allocation
procedures for the control periods in 2021 and beyond. Additionally,
EPA is taking direct final action to approve 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 2023 and beyond. The
approval of this SIP revision does not alter any provision of either
the CSAPR NOX Ozone Season Group 2 Trading Program, 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. The FIP provisions
requiring those units to participate in the programs (as modified by
this SIP revision) remain in place.
Section II of this document summarizes relevant aspects of the
CSAPR federal trading programs and FIPs as well as the range of
opportunities states have to submit SIP revisions to modify or replace
the FIP requirements while continuing to rely on CSAPR's trading
programs to address
[[Page 22974]]
the states' obligations to mitigate interstate air pollution. Section
III describes the specific criteria for approval of such SIP revisions.
Section IV contains the EPA's analysis of New York's SIP submittal, and
Section V sets forth EPA's action on New York's submittals.
II. Background on CSAPR and CSAPR-Related SIP Revisions
The 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 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 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 the 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.
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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, as described in section III below.
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.
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\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).
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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.
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\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 the 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 the 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, the 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 the EPA to complete the process
of allocating and recording allowances for that control period to those
units will continue to apply, unless the 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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III. Criteria for Approval of CSAPR-Related SIP Revisions
Each CSAPR-related abbreviated or full SIP revision must meet the
following general submittal criteria:
Timeliness and completeness of SIP submittal. If a state
wants to replace the default allowance allocation or applicability
provisions of a CSAPR federal trading program, the complete SIP
revision must be submitted to the EPA by December 1 of the year before
[[Page 22975]]
the deadlines described below for submitting allocation or auction
amounts to EPA for the first control period for which the state wants
to replace the default allocation and/or applicability provisions.\12\
This SIP submission deadline is inoperative in the case of a SIP
revision that seeks only to replace a CSAPR FIP and federal trading
program with a SIP and a substantively identical state trading program
integrated with the federal trading program. The SIP submittal
completeness criteria in section 2.1 of appendix V to 40 CFR part 51
also apply.
---------------------------------------------------------------------------
\12\ 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); Sec. 52.39(e)(2), (f)(6),
(h)(2), (i)(6).
---------------------------------------------------------------------------
In addition to the general submittal criteria, a CSAPR-related
abbreviated or full SIP seeking to address the allocation or auction of
emission allowances must meet the following further criteria:
Methodology covering all allowances potentially requiring
allocation. For each federal trading program addressed by a SIP
revision, the SIP revision's allowance allocation or auction
methodology must replace both the federal program's default allocations
to existing units \13\ at 40 CFR 97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a) as applicable, and the federal trading
program's provisions for allocating allowances from the new unit set-
aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a),
97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and 97.812(a), as applicable.\14\ In the
case of a state with Indian country within its borders, while the SIP
revision may neither alter nor assume the federal program's provisions
for administering the Indian country NUSA for the state, the SIP
revision must include procedures addressing the disposition of any
otherwise unallocated allowances from an Indian country NUSA that may
be made available for allocation by the state after EPA has carried out
the Indian country NUSA allocation procedures.\15\
---------------------------------------------------------------------------
\13\ In the context of the approval criteria for CSAPR-related
SIP revisions, an ``existing unit'' is a unit for which EPA has
determined default allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing and amending
CSAPR. Spreadsheets showing EPA's default allocations to existing
units are posted at https://www.epa.gov/csapr/unit-level-allocations-under-csapr-transport-rule-fips-after-tolling and
https://www.epa.gov/airmarkets/final-cross-state-air-pollution-rule-update.
\14\ Sec. 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii),
(b)(8)(iii), (b)(9)(iii); Sec. 52.39(e)(1), (f)(1), (h)(1), (i)(1).
\15\ See Sec. Sec. 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
---------------------------------------------------------------------------
Assurance that total allocations will not exceed the state
budget. For each federal trading program addressed by a SIP revision,
the total amount of allowances auctioned or allocated for each control
period under the SIP revision (prior to the addition by EPA of any
unallocated allowances from any Indian country NUSA for the state)
generally may not exceed the state's emissions budget for the control
period less the sum of the amount of any Indian country NUSA for the
state for the control period and any allowances already allocated to
the state's units for the control period and recorded by EPA.\16\ Under
its SIP revision, a state is free to not allocate allowances to some or
all potentially affected units, to allocate or auction allowances to
entities other than potentially affected units, or to allocate or
auction fewer than the maximum permissible quantity of allowances and
retire the remainder. Under the CSAPR NOX Ozone Season Group
2 Trading Program only, additional allowances may be allocated if the
state elects to expand applicability to non-EGUs that would have been
subject to the former NOX Budget Trading Program established
for compliance with the NOX SIP Call.\17\
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\16\ Sec. 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A),
(b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A); Sec. 52.39(e)(1)(i),
(f)(1)(i), (h)(1)(i), (i)(1)(i).
\17\ Sec. 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
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Timely submission of state-determined allocations to EPA.
The SIP revision must require the state to submit to the EPA the
amounts of any allowances allocated or auctioned to each unit for each
control period (other than allowances initially set aside in the
state's allocation or auction process and later allocated or auctioned
to such units from the set-aside amount) by the following deadlines
shown in Tables 1 and 2 below.\18\ Note that the submission deadlines
differ for amounts allocated or auctioned to units considered existing
units for CSAPR purposes and amounts allocated or auctioned to other
units.
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\18\ Sec. 52.38(a)(4)(i)(B)-(C), (a)(5)(i)(B)-(C),
(b)(4)(ii)(B)-(C), (b)(5)(ii)(B)-(C), (b)(8)(iii)(B)-(C),
(b)(9)(iii)(B)-(C); Sec. 52.39(e)(1)(ii)-(iii), (f)(1)(ii)-(iii),
(h)(1)(ii)-(iii), (i)(1)(ii)-(iii).
Table 1--CSAPR NOX Annual, CSAPR NOX Ozone Season Group 1, CSAPR SO2
Group 1, and CSAPR SO2 Group 2 Trading Programs
------------------------------------------------------------------------
Deadline for
Year of the submission to EPA of
Units control period allocations or
auction results
------------------------------------------------------------------------
Existing...................... 2017 and 2018.... June 1, 2016.
2019 and 2020.... June 1, 2017.
2021 and 2022.... June 1, 2018.
2023 and later June 1 of the fourth
years. year before the year
of the control
period.
Other......................... All years........ July 1 of the year of
the control period.
------------------------------------------------------------------------
Table 2--CSAPR NOX Ozone Season Group 2 Trading Program
------------------------------------------------------------------------
Deadline for
Year of the submission to EPA of
Units control period allocations or
auction results
------------------------------------------------------------------------
Existing...................... 2019 and 2020.... June 1, 2018.
2021 and 2022.... June 1, 2019.
2023 and 2024.... June 1, 2020.
2025 and later June 1 of the fourth
years. year before the year
of the control
period.
Other......................... All years........ July 1 of the year of
the control period.
------------------------------------------------------------------------
No changes to allocations already submitted to EPA or
recorded. The SIP revision must not provide for any change to the
amounts of allowances allocated or auctioned to any unit after those
amounts are submitted to EPA or any change to any allowance allocation
determined and recorded by EPA under
[[Page 22976]]
the federal trading program regulations.\19\
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\19\ Sec. 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D),
(b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D); Sec.
52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
---------------------------------------------------------------------------
No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also expands program applicability as described below.\20\ Any new
definitions adopted in the SIP revision (in addition to the federal
trading program's definitions) may apply only for purposes of the SIP
revision's allocation or auction provisions.\21\
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\20\ Sec. 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8), (b)(9);
Sec. 52.39(e), (f), (h), (i).
\21\ Sec. 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii),
(b)(8)(iv), (b)(9)(iv); Sec. 52.39(e)(1), (f)(2), (h)(1), (i)(2).
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In addition to the general submittal criteria, a CSAPR-related
abbreviated or full SIP revision seeking to expand applicability under
their integrated state trading programs (which is allowed for CSAPR's
NOX ozone season programs only) must meet the following
further criteria:
Only EGUs with nameplate capacity of at least 15 MWe.\22\
The SIP revision may expand applicability only to additional fossil
fuel-fired boilers or combustion turbines serving generators producing
electricity for sale, and only by lowering the generator nameplate
capacity threshold used to determine whether a particular boiler or
combustion turbine serving a particular generator is a potentially
affected unit. The nameplate capacity threshold adopted in the SIP
revision may not be less than 15 MWe.\23\ In addition or alternatively,
applicability may be extended to non-EGUs that would have been subject
to the former NOX Budget Trading Program established for
compliance with the NOX SIP Call.\24\
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\22\ Megawatts of electricity
\23\ Sec. 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
\24\ Sec. 52.38(b)(8)(ii), (b)(9)(ii).
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No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also addresses the allocation or auction of emission allowances as
described above.\25\
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\25\ Sec. 52.38(b)(4), (b)(5), (b)(8), (b)(9).
---------------------------------------------------------------------------
In addition to the general submittal criteria and the other
applicable criteria described above, a CSAPR-related full SIP revision
must meet the following further criteria:
Complete, substantively identical trading program
provisions. The SIP revision must adopt complete state trading program
regulations substantively identical to the complete federal trading
program regulations at 40 CFR 97.402 through 97.435, 97.502 through
97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through
97.835, as applicable, except as described above in the case of a SIP
revision that seeks to replace the default allowance allocation and/or
applicability provisions.\26\
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\26\ Sec. 52.38(a)(5), (b)(5), (b)(9); Sec. 52.39(f), (i).
---------------------------------------------------------------------------
Only non-substantive substitutions for the term ``State.''
The SIP revision may substitute the name of the state for the term
``State'' as used in the federal trading program regulations, but only
to the extent that EPA determines that the substitutions do not
substantively change the trading program regulations.\27\
---------------------------------------------------------------------------
\27\ Sec. Sec. 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v);
52.39(f)(3), (i)(3).
---------------------------------------------------------------------------
Exclusion of provisions addressing units in Indian
country. The SIP revision may not impose requirements on any unit in
any Indian country within the state's borders and must not include the
federal trading program provisions governing allocation of allowances
from any Indian country NUSA for the state.\28\
---------------------------------------------------------------------------
\28\ Sec. Sec. 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi);
52.39(f)(4), (i)(4).
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IV. New York's Submittals and EPA's Analysis
A. New York's SIP Submittals
On November 30, 2018, New York submitted to the EPA an abbreviated
SIP revision that, if approved, would replace the default allowance
allocation provisions of the CSAPR NOX Ozone Season Group 2,
CSAPR NOX Annual, and CSAPR SO2 Group 1 Trading
Programs for the state's EGUs with provisions establishing state-
determined allocations but would leave the corresponding CSAPR FIPs and
all other provisions of the trading programs in place.
New York's allowance allocation procedures for ozone season
NOX allowances would replace EPA's default allocation
procedures for the control periods in 2021 and beyond. New York's
allowance allocation procedures for annual NOX and
SO2 allowances would replace EPA's default allocation
procedures for the control periods in 2023 and beyond.
The November 30, 2018 SIP submittal includes the following adopted
state rules: 6 NYCRR Part 243, ``CSAPR NOX Ozone Season
Group 2 Trading Program,'' 6 NYCRR Part 244, ``CSAPR NOX
Annual Trading Program,'' and 6 NYCRR Part 245, ``CSAPR SO2
Group 1 Trading Program.'' Previous versions of the rules, i.e., 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 Group 1 Trading Program,'' have been repealed and
replaced in their entirety with the new rules. Attendant revisions were
made to 6 NYCRR Part 200, Subpart 200.9, ``General Provisions,
Referenced Material,'' to update the list of referenced material that
are cited in the amended New York regulations. The regulations were
adopted on November 11, 2018, and effective on January 2, 2019. New
York's Parts 243, 244 and 245, submitted to EPA on November 30, 2018,
allow the State to replace the provisions of the CSAPR NOX
Ozone Season Group 2, CSAPR NOX Annual, and CSAPR
SO2 Group 1 trading program allocation methodology with its
own methodology. Parts 243, 244 and 245 apply to units that serve an
electrical generator with a nameplate capacity equal to or greater than
25 megawatts of electrical output and sell any amount of electricity.
The control period for Part 243 runs from May 1 to September 30. The
control periods for Parts 244 and 245 run from January 1 to December
31. DEC would allocate CSAPR NOX Ozone Season Group 2
allowances beginning with the 2021 control period; and CSAPR
NOX Annual and SO2 Group 1 allowances beginning
with the 2023 control period.
For existing units, New York's allocation methodology is based on
the average of recent emissions (i.e., the average of the three last
years for which data is available) from all New York Transport Rule
units. Five percent of the statewide budgets for annual emissions of
SO2, annual emissions of NOX, and ozone season
emissions of NOX would be set aside for new units, and the
remainder of the statewide budgets, but at least ten percent, will be
allocated to the Energy Efficiency and Renewable Energy Technology
(EERET) account. If the allocation to the EERET account would be less
than the prescribed minimum after allocations to existing units based
on the 3-year average of emissions and an allocation of five percent to
the new unit set-aside, allocations to existing units would be reduced
proportionally by the amounts necessary to ensure that ten percent of
the budget is allocated to the EERET account.
The DEC will distribute all allowances at no cost except for
allowances held in the EERET account, which will be administered by the
New York State Energy Research and
[[Page 22977]]
Development Authority (NYSERDA). The sale of allowances by NYSERDA will
be used to fund energy efficiency projects, renewable energy, or clean
energy technology. Any EERET allowances that are not sold or
distributed by NYSERDA within 12 months of the initial allocation to
the EERET account will be returned to the DEC for retirement or
reallocation.
On July 23, 2015, New York submitted a SIP submittal, which
included a revised version of 6 NYCRR Part 200 (Subpart 200.1) that was
adopted by the State. The definition for ``Air contamination source or
emission source'' under Subdivision 200.1(f) was revised to address the
repeal of 6 NYCRR Part 203, ``Indirect Sources of Air Contamination''.
The regulation was adopted on April 18, 2013, a notice of adoption was
filed on April 19, 2013, and the regulation became effective on May 19,
2013.
B. EPA's Analysis of New York's Submittals
A. November 30, 2018 Submittal
1. Timeliness and Completeness of New York's SIP Submittal
New York's SIP revision seeks to establish state-determined
allocations starting with the 2021 control period for the CSAPR
NOX Ozone Season Group 2 trading program and the 2023
control period for the CSAPR NOX Annual and SO2
Group 1 trading programs. For the NOX Annual and
SO2 Group 1 trading programs, under 40 CFR 52.38(a)(4)(i)(B)
and 52.39(e)(1)(ii), the deadline for submission of state-determined
allocations for the 2023 control periods is June 1, 2019, which under
52.38(a)(4)(ii) and 52.39(e)(2) makes December 1, 2018, the deadline
for submission to the EPA of a complete SIP revision establishing
state-determined allocations for those control periods. For the
NOX Ozone Season Group 2 trading program, under 40 CFR
52.38(b)(8)(iii)(B) the allocation submission deadline for the 2021
control period is June 1, 2019, triggering a December 1, 2018 deadline
for a SIP submittal under 40 CFR 52.38(b)(8)(iv). New York submitted
its SIP revision to EPA by letter dated and delivered electronically on
November 30, 2018, and EPA has determined that the submittal complies
with the applicable minimum completeness criteria of 40 CFR part 51,
Appendix V, Section 2.1. New York has therefore met the requirements
for timeliness and completeness criteria of its CSAPR SIP submittal for
all three programs.
2. Methodology Covering All Allowances Potentially Requiring Allocation
Sections 243.3 through 243.6, 244.3 through 244.6, and 245.3
through 245.6 of the New York rules provide the allocation methodology
adopted by New York in the SIP revision. Sections 243.3 through 243.6
replace the provisions of 40 CFR 97.811(a), 97.811(b)(1), and 97.812(a)
for allocations of CSAPR NOX Ozone Season Group 2
allowances; Sections 244.3 through 244.6 replace the provisions of 40
CFR 97.411(a), 97.411(b)(1), and 97.412(a) for allocations of
NOX Annual allowances; and Sections 245.3 through 245.6
replace the provisions of 40 CFR 97.611(a), 97.611(b)(1), and 97.612(a)
for allocations of SO2 Group 1 allowances. New York's
methodology addresses allocation of allowances that under the default
allocation provisions for the federal trading programs would be
allocated to existing units as well as allowances that would be
allocated to new units from the new unit set-asides established for New
York under the federal trading programs. New York's rules also include
provisions for the disposition of any otherwise unallocated Indian
country new unit set-aside allowances. New York's rules therefore meet
the conditions under 40 CFR 52.38(a)(4)(i), 52.38(b)(8)(iii),
52.39(e)(1), 97.412(b)(10)(ii), 97.612(b)(10)(ii), and
97.812(b)(10)(ii) that the state's allocation methodology must cover
all allowances potentially requiring allocation by the state.
3. Assurance That Total Allocations Will Not Exceed the State Budget
Sections 243.3, CSAPR NOX Ozone Season Group 2 Trading
Program budgets, 244.3, CSAPR NOX Annual Trading Program
budgets, and 245.3, CSAPR SO2 Group 1 Trading Program
budgets, set forth the total amounts of CSAPR NOX Ozone
Season Group 2 allowances, CSAPR NOX Annual allowances, and
CSAPR SO2 Group 1 allowances to be allocated to New York
units for each control period under the state trading programs.
Section 243.3 provides for allowance allocations equal to New
York's NOX Ozone Season Group 2 trading budget at 40 CFR
97.810(a)(15), which is 5,135 tons, less the amount of the Indian
country new unit set-aside (5 tons). Section 244.3 provides for
allowance allocations equal to New York's NOX Annual trading
budget at 40 CFR 97.410(a)(14), which is 21,722 tons, less the amount
of the Indian country new unit set-aside (22 tons). Section 245.3
provides for allowance allocations equal to New York's SO2
Group 1 budget at 40 CFR 610(a)(9), which is 27,556 tons, less the
amount of the Indian country new unit set-aside (28 tons). EPA has not
yet allocated or recorded any allowances to New York units for the
control periods for which New York's rules would establish a state-
determined allocation methodology. The allocation methodology in New
York's SIP revision, therefore, meets the conditions under 40 CFR
52.38(a)(4)(i)(A), 52.38(b)(8)(iii)(A), and 52.39(e)(1)(i) that the
total amount of allowances allocated under the SIP revision may not
exceed the state's budget for the control period less the amount of the
Indian country NUSA for the state and any allowances already allocated
and recorded by the EPA.
4. Timely Submission of State-Determined Allocations to EPA
Sections 243.4, 244.4, and 245.4 provide for allowance allocations
for existing units to be submitted to the EPA. With respect to CSAPR
NOX Ozone Season Group 2 allowance allocations for existing
units, Section 243.4 provides that New York will submit allocations for
the 2021 and 2022 control periods by June 1, 2019; the state will
submit allocations for the 2023 and 2024 control periods by June 1,
2020; and by June 1, 2021, and June 1st of each year thereafter, the
state will submit allocations for the control period in the fourth year
following the year of the submission deadline. With respect to CSAPR
NOX Annual and CSAPR SO2 Group 1 allowance
allocations for existing units, Sections 244.4 and 245.4 provide that
the state will submit allocations by June 1, 2019,\29\ and by June 1st
of each year thereafter, for the control period in the fourth year
following the year of the submission deadline.
---------------------------------------------------------------------------
\29\ Allowance allocations for the 2023 control period would be
submitted by June 1, 2019.
---------------------------------------------------------------------------
With respect to NUSA allowance allocations under all three
programs, Sections 243.5(a)(7), 244.5(a)(7), and 245.5(a)(7) indicate
that the state will submit state-determined allocations to the EPA by
July 1st of the control period.
New York's SIP revision meets the criteria under 40 CFR
52.38(a)(4)(i)(B)-(C), 52.38(b)(8)(iii)(B)-(C), and 52.39(e)(1)(ii)-
(iii) requiring that the SIP revision provide for submission of state-
determined allowance allocations to EPA by the deadlines specified in
those provisions.
[[Page 22978]]
5. No Changes to Allocations Already Submitted to EPA or Recorded
The New York rules include no provisions allowing alteration of
allocations after the allocation amounts have been provided to the EPA
and no provisions allowing alteration of any allocations made and
recorded by the EPA under the federal trading program regulations,
thereby meeting the condition under 40 CFR 52.38(a)(4)(i)(D),
52.38(b)(8)(iii)(D), and 52.39(e)(1)(iv).
6. No Other Substantive Changes to Federal Trading Program Provisions
In addition to the allowance allocation provisions in New York's
rules, Sections 243.1, 244.1 and 245.1 address applicability and
Sections 243.2, 244.2, and 245.2 set forth relevant definitions. The
applicability provisions and most of the definitions directly reference
the corresponding provisions in the federal trading program
regulations, and the remaining definitions do not conflict with the
definitions in the federal trading program regulations. The EPA has
therefore determined that the SIP revision meets the requirements of 40
CFR 52.38(a)(4), 52.38(b)(8), and 52.39(e) by making no substantive
changes to the federal trading program regulations beyond the
provisions addressing allowance allocations.
Finally, as stated in section I, the EPA conditionally approved
previous versions of 6 NYCRR Parts 200, 244 and 245 in an action
published on December 5, 2017 (82 FR 57362), but the state did not
submit a revised SIP that addressed EPA-identified deficiencies within
the required time frame New York's November 30, 2018 SIP revision
approved in this direct final action does fully address the
deficiencies that the EPA identified in the December 5, 2017 final
action.
7. Removal of CAIR Trading Program Provisions
As discussed earlier, New York's CSAPR rules were adopted to
replace previous versions of 6 NYCRR Part 243, 6 NYCRR Part 244, and 6
NYCRR Part 245 which implemented New York's discontinued CAIR trading
programs. For the reasons discussed below, the EPA is also taking
direct final action to approve the removal of New York's CAIR rules
from the SIP. The rules being removed from the SIP are 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.'' All three of the
CAIR trading programs have been discontinued and are no longer operated
by EPA. Electricity generating units (EGUs) in New York now participate
in the CSAPR NOX Ozone Season Group 2 Trading Program, CSAPR
NOX Annual Trading Program, and CSAPR SO2 Group 1
Trading Program.
In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to
address transported emissions that significantly contributed to
downwind states' nonattainment and interfered with maintenance of the
1997 ozone and PM2.5 NAAQS. CAIR required 28 states,
including New York, to revise their SIPs to reduce emissions of
NOX and SO2, precursors to the formation of
ambient ozone and PM2.5. Under CAIR, EPA provided model
state rules for separate cap-and-trade programs for annual
NOX, ozone season NOX, and annual SO2.
New York submitted, and EPA approved, a CAIR SIP revision based on the
model state rules establishing CAIR state trading programs for annual
SO2, annual NOX, and ozone season NOX
emissions, with certain non-EGUs included in the state's CAIR ozone
season NOX trading program. See 73 FR 4109 (January 24,
2008).
The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately
remanded the rule to EPA without vacatur to preserve the environmental
benefits provided by CAIR. North Carolina v. EPA, 531 F.3d 896,
modified, 550 F.3d 1176 (2008). The ruling allowed CAIR to remain in
effect temporarily until a replacement rule consistent with the court's
opinion was developed. While EPA worked on developing a replacement
rule, the CAIR program continued as planned with the NOX
annual and ozone season programs beginning in 2009 and the
SO2 annual program beginning in 2010.
On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's
remand, EPA promulgated CSAPR to replace CAIR in order to address the
interstate transport of emissions contributing to nonattainment and
interfering with maintenance of the two air quality standards covered
by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR promulgated
FIPs requiring EGUs in affected states, including New York, to
participate in federal trading programs to reduce annual
SO2, annual NOX, and/or ozone season
NOX emissions. The rule also contained provisions that would
sunset CAIR-related obligations on a schedule coordinated with the
implementation of the CSAPR compliance requirements.
CSAPR was intended to become effective January 1, 2012; however,
the timing of CSAPR's implementation was impacted by subsequent
litigation. CSAPR implementation was stayed during the course of
litigation in the D.C. Circuit and the Supreme Court, until the D.C.
Circuit lifted the stay on October 23, 2014. EPA subsequently issued an
interim final rule on December 3, 2014 (79 FR 71663), setting the
updated effective date of CSAPR as January 1, 2015.\30\ In accordance
with the interim final rule, EPA stopped administering the CAIR state
and federal trading programs with respect to emissions occurring after
December 31, 2014, and EPA began implementing CSAPR on January 1, 2015.
---------------------------------------------------------------------------
\30\ EPA solicited comment on the interim final rule and
subsequently issued a final rule affirming the amended compliance
schedule after consideration of comments received. 81 FR 13275
(March 14, 2016).
---------------------------------------------------------------------------
EPA has not administered the CAIR trading programs since January 1,
2015, when the CSAPR trading programs replaced the CAIR trading
programs. The provisions in New York's SIP which were promulgated and
approved for purposes of implementing the CAIR trading programs in the
State have not been implemented since that time and cannot be
implemented now or in the future. Because the EPA no longer administers
the CAIR trading programs, and therefore New York's own CAIR trading
program regulations cannot be implemented, removing New York's CAIR
rules from the state's SIP will have no consequences for any source's
operations or emissions or for the attainment and maintenance of the
NAAQS in any area, now or in the future. Accordingly, removal of the
CAIR rules does not impact the state's continued compliance with
section CAA 110(a)(2)(D)(i)(I) for any NAAQS. Moreover, consistent with
CAA section 110(l), the EPA has determined that the removal of New
York's CAIR trading program rules will not interfere with any
applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the Clean Air Act.
Current emission levels in New York further demonstrate that the
CAIR trading programs are not influencing and would not influence
affected sources' operations. As shown in Table 3 below, current
emissions levels are significantly below the CAIR budgets even while
the CAIR trading programs are no longer being implemented.
[[Page 22979]]
Table 3--Comparison of New York CAIR Budgets and 2018 Emissions
[Tons]
----------------------------------------------------------------------------------------------------------------
CAIR phase I CAIR phase 2 2018
Type of emissions budget \1\ budget \1\ emissions \2\
----------------------------------------------------------------------------------------------------------------
Ozone season NOX \3\............................................ 31,091 27,652 5,790
Annual NOX...................................................... 45,617 38,014 9,706
SO2............................................................. 135,139 94,597 4,889
----------------------------------------------------------------------------------------------------------------
\1\ The CAIR budget amounts are from the EPA's proposal to approve New York's CAIR regulations into the SIP. 72
FR 55723 (Oct. 1, 2007); see also 73 FR 4109 (Jan. 24, 2008) (finalizing approval).
\2\ The 2018 emissions totals are from the EPA's Air Markets Program Database, https://ampd.epa.gov.
\3\ The ozone season NOX budgets and emissions include both EGUs and non-EGUs meeting the applicability criteria
for New York's former NOX Budget Trading Program.
EGUs in New York also remain subject to FIPs, as modified by the
abbreviated SIPs approved in this direct final action, requiring the
sources to particulate in annual NOX, annual SO2,
and ozone season NOX \31\ federal trading programs under
CSAPR and the CSAPR Update that limit emissions from such sources in
the State. EGUs also continue to be subject to part 75 monitoring
requirements under the current CSAPR trading program rules.
---------------------------------------------------------------------------
\31\ The D.C. Circuit ultimately remanded New York's CSAPR Phase
2 budget for ozone season NOX, finding that the
rulemaking record did not support EPA's determination of a transport
obligation under the 1997 ozone NAAQS for New York. EME Homer City
Generation, L.P., v. EPA, 795 F.3d 118, 129-30, (2015). In response,
EPA withdrew New York's remanded budget in the CSAPR Update
rulemaking; concurrently, however, EPA promogulated a new emission
budget to address the 2008 ozone NAAQS, which replaced the
invalidated CSAPR budget intended to address the 1997 ozone NAAQS.
81 FR 74524. Thus, EGUs in New York remain subject to a CSAPR
trading program for ozone-season NOX.
---------------------------------------------------------------------------
The EPA notes that New York's CAIR trading program for ozone season
NOX addressed not only the state's transport obligation
under the 1997 ozone NAAQS, but also New York's ongoing obligations
under the NOX SIP Call.\32\ Under the NOX SIP
Call the New York SIP must (1) include enforceable control measures for
ozone season NOX mass emissions from large EGUs and large
non-EGUs and (2) require those sources to monitor and report ozone
season NOX emissions, which may be in accordance with 40 CFR
part 75. See 40 CFR 51.121(f)(2) and (i).
---------------------------------------------------------------------------
\32\ The NOX SIP Call addresses states' transport
obligations under the 1979 ozone NAAQS.
---------------------------------------------------------------------------
With respect to the NOX SIP Call requirement that the
SIP include enforceable control measures to limit ozone season
NOX, New York is currently subject to the federal CSAPR
trading program for ozone season NOX that addresses these
requirements as to EGUs, but because New York's non-EGUs are not
subject to that CSAPR trading program, the state must meet this
requirement for non-EGUs through other SIP provisions. New York's SIP
has not included enforceable control measures for these non-EGUs since
2015, when EPA began implementing the CSAPR trading programs and
stopped administering the CAIR trading programs. Thus, this gap in SIP
coverage was caused by EPA's discontinuation of the CAIR trading
programs and predates the SIP submittal at issue in this action.
Removing the state's CAIR rules from the SIP at this time will not
exacerbate or otherwise affect this pre-existing lack of enforceable
control measures in the SIP, and as noted above, the removal will have
no impact on source operations or emissions.
As to the requirement for sources to monitor and report ozone
season NOX emissions under the NOX SIP Call,
removal of the state's CAIR rules from the state's SIP does not
eliminate the state's current requirements for EGUs and non-EGUs to
monitor and report their ozone season NOX emissions, as
required under the NOX SIP Call. New York's SIP still
includes the state's NOX Budget Trading Program rules, and
those rules continue to require, at 6 NYCRR Part 204, that EGUs and
non-EGUs monitor and report ozone season NOX emissions under
part 75 even though EPA is no longer administering the trading program
provisions of the state's rules. Thus, removal of the state's CAIR
rules for ozone season NOX emissions from New York's SIP
will not eliminate the provisions for monitoring that are required by
the NOX SIP Call because the SIP will still include
equivalent ozone season NOX monitoring provisions in the
state's NOX Budget Trading Program rules.
Accordingly, EPA finds that it is appropriate to approve the
rescission of New York's CAIR rules from the SIP.
B. July 23, 2015 Submittal
The July 23, 2015 New York SIP submittal included a revised version
of 6 NYCRR Part 200 (Subpart 200.1), which modified the definition of
``Air contamination source or emission source'' at Subdivision
200.1(f). The regulation was adopted on April 18, 2013, the notice of
adoption was filed on April 19, 2013 and regulation became effective on
May 19, 2013. The SIP submittal was deemed administratively complete by
operation of law on January 23, 2016. The EPA is taking direct final
action to approve the July 23, 2015 SIP submittal.
V. EPA's Action on New York's Submittals
The EPA is taking direct final action to approve the New York SIP
revision submitted on November 30, 2018 concerning allocations to New
York units of CSAPR NOX Ozone Season Group 2 allowances for
the control periods in 2021 and beyond and of CSAPR NOX
Annual allowances and CSAPR SO2 Group 1 allowances for the
control periods in 2023 and beyond. This rule approves into the New
York SIP amendments to 6 NYCRR Parts 243, 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. The EPA is also
taking direct final action approving the attendant revisions to 6 NYCRR
Part 200 (Subpart 200.9) to update the list of referenced materials
cited in the amended New York regulations. The EPA is taking direct
final action to approve the New York SIP revision submitted on July 23,
2015, which included a revised version of 6 NYCRR Part 200 (Subpart
200.1) to address updated definitions associated with a repeal of 6
NYCRR Part 203, ``Indirect Sources of Air Contamination''.
The EPA is also taking direct final action to repeal from the SIP
previous versions of 6 NYCRR Part 243, 6 NYCRR Part 244, and 6 NYCRR
Part 245 which implemented New York's discontinued CAIR trading
program. The rules being repealed from the SIP are 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.''
[[Page 22980]]
Following the approval into the SIP of the revisions to 6 NYCRR
Parts 200, 243, 244, and 245, allocations of CSAPR NOX Ozone
Season Group 2 allowances, CSAPR NOX Annual allowances, and
CSAPR SO2 Group 1 allowances will be made according to the
provisions of New York's SIP instead of 40 CFR 97.411(a), 97.411(b)(1),
97.412(a), 97.611(a), 97.611(b)(1), 97.612(a), CFR 97.811(a),
97.811(b)(1), and 97.812(a). The EPA's action on this SIP revision does
not alter any provisions of the federal CSAPR NOX Ozone
Season Group 2 Trading Program, 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. The
EPA's is approving Parts 200, 243, 244 and 245 because New York's rules
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.A above.
VI. Incorporation By Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of revisions to
6 NYCRR Parts 200, Subpart 200.1, entitled ``General Provisions,
Definitions,'' adopted April 18, 2013; 6 NYCRR Part 200, Subpart 200.9,
entitled ``General Provisions, Referenced Material,'' adopted on
November 11, 2018; 6 NYCRR Part 243, entitled ``CSAPR NOX
Ozone Season Group 2 Trading Program,'' adopted November 11, 2018; 6
NYCRR Part 244, entitled ``CSAPR NOX Annual Trading
Program,'' adopted November 11, 2018; and NYCRR Part 245, entitled
``CSAPR SO2 Group 1 Trading Program,'' adopted November 11,
2018. The EPA has made, and will continue to make, these materials
generally available through www.regulations.gov, and at the EPA Region
2 Office. Copies of materials incorporated may be inspected at the
Environmental Protection Agency, Region 2, Air Programs Branch, 290
Broadway, New York, New York 10007. Please contact the person
identified in the For Further Information Contact section of this
preamble for more information. Therefore, these materials have been
approved by the 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 in the next
update of the SIP compilation.\33\
---------------------------------------------------------------------------
\33\ 62 FR 27968 (May 22, 1997)
---------------------------------------------------------------------------
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 proposed 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, 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 July 22, 2019. 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.
[[Page 22981]]
Dated: May 2, 2019.
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 HH--New York
0
2. In Sec. 52.1670, paragraph (c) is amended by revising the table
entries ``Title 6, Part 200, Subpart 200.1'', ``Title 6, Part 200,
Subpart 200.9'', ``Title 6, Part 243'', ``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 EPA approval
State citation Title/subject effective date date Comments
----------------------------------------------------------------------------------------------------------------
Title 6, Part 200, Subpart 200.1. General Provisions, 05/19/2013 5/21/19 The word odor is removed
Definitions. from the Subpart
200.1(d) definition of
``air contaminant or
air pollutant.''
Redesignation of non-
attainment areas to
attainment areas
(200.1(av)) does not
relieve a source from
compliance with
previously applicable
requirements as per
letter of Nov. 13, 1981
from H. Hovey, NYSDEC.
Changes in definitions
are acceptable to EPA
unless a previously
approved definition is
necessary for
implementation of an
existing SIP
regulation.
EPA is including the
definition of
``federally
enforceable'' with the
understanding that (1)
the definition applies
to provisions of a
Title V permit that are
correctly identified as
federally enforceable,
and (2) a source
accepts operating
limits and conditions
to lower its potential
to emit to become a
minor source, not to
``avoid'' applicable
requirements.
EPA is
approving incorporation
by reference of those
documents that are not
already federally
enforceable.
EPA approval
finalized at [insert
Federal Register
citation]
* * * * * * *
Title 6, Part 200, Subpart 200.9. General Provisions, 01/02/2019 5/21/19 EPA is
Referenced approving reference
Material. documents that are not
Federally enforceable.
EPA approval
finalized at [insert
Federal Register
citation].
* * * * * * *
Title 6, Part 243................ CSAPR NOX Ozone 01/02/2019 5/21/19 EPA approval
Season Group 2 finalized at [insert
Trading Program. Federal Register
citation]
Title 6, Part 244................ CSAPR NOX Annual 01/02/2019 5/21/19 EPA approval
Trading Program. finalized at [insert
Federal Register
citation]
Title 6, Part 245................ CSAPR SO2 Group 1 01/02/2019 5/21/19 EPA approval
*................................ Trading Program. * * * finalized at [insert
*.................. Federal Register
citation]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2019-10479 Filed 5-20-19; 8:45 am]
BILLING CODE 6560-50-P
