Approval of Air Quality Implementation Plans; New York; Cross-State Air Pollution Rule; NOX, 38878-38882 [2019-16789]
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(1) EPA APPROVED NORTH CAROLINA REGULATIONS
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2019–0157; FRL–9997–59–
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: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve revisions 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.
DATES: This final rule is effective on
August 8, 2019.
ADDRESSES: EPA has established a
docket for this action under Docket ID
number EPA–R02–OAR–2019–0157. All
documents in the docket are listed on
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SUMMARY:
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the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available through
www.regulations.gov, or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Kenneth Fradkin, Air Programs Branch,
Environmental Protection Agency, 290
Broadway, 25th Floor, New York, New
York 10007–1866, (212) 637–3702, or by
email at fradkin.kenneth@epa.gov.
SUPPLEMENTARY INFORMATION
Table of Contents
I. Background
II. Public Comment and EPA Response
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background
On May 21, 2019 (84 FR 22995 and
84 FR 22972), EPA simultaneously
published a proposed rule and a direct
final rule 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. The proposed rule
and direct final rule also acted to
approve New York’s revised list of
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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8/8/2019, [Insert citation
The July 20, 2011 incorporation by reference date
of publication].
of 40 CFR 51.166 found in paragraph (o) does
not incorporate the text of the federal Biomass
Deferral Rule at 51.166(b)(48)(ii)(a).
9/1/2015
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Explanation
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definitions that was submitted to the
EPA on July 23, 2015.
The EPA received a public comment
on the proposed rule and intended to
withdraw the direct final rule prior to
the effective date of June 20, 2019.
However, the EPA inadvertently did not
withdraw the direct final rule prior to
that date and the rule prematurely
became effective on June 20, 2019,
revising the New York SIP to include
revised versions of Title 6 of the New
York Codes, Rules and Regulations (6
NYCRR), Part 200, Subpart 200.1; 6
NYCRR Part 200, Subpart 200.9; 6
NYCRR Part 243; 6 NYCRR Part 244;
and 6 NYCRR 245 on that date. In this
action, as described in more detail
below, the EPA is responding to the
public comment submitted on the
proposed revisions to New York’s SIP,
approves the revised versions of these
regulations in New York’s SIP, and is
amending the effective date of the
regulations’ inclusion into the SIP to
correct our failure to withdraw the
direct final rule prior to June 20, 2019.
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 to
incorporate CSAPR requirements into
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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.
In the notice of proposed rulemaking,
the EPA had proposed 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 also proposed 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 Clean Air Interstate
Rule (CAIR) trading 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 12, 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 12, 2015
adopted rules that implemented New
York’s CSAPR program with new
versions of New York’s CSAPR trading
program rules. The rules proposed to be
repealed from the SIP were 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 also proposed to approve
into the New York SIP a revised version
of 6 NYCRR Part 200 (Subpart 200.1) to
address updated definitions at Part
200.1(f) that were submitted to the EPA
on July 23, 2015, and 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
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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.
The EPA did not take action on the
previous version of 6 NYCRR Part 243
included in New York’s December 1,
2015 submission. Following that
submission, the EPA finalized the
CSAPR Update rule 2 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 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’’.
In this action, the EPA is responding
to the public comment submitted on the
proposed revisions to New York’s SIP,
approves the revised versions of 6
NYCRR Part 200, Subpart 200.1; 6
NYCRR Part 200, Subpart 200.9; 6
NYCRR Part 243; 6 NYCRR Part 244;
and 6 NYCRR Part 245 regulations in
New York’s SIP, and is amending the
effective date of the regulations’
inclusion into the SIP to correct our
failure to withdraw the direct final rule
(after the EPA received adverse public
comments) prior to the June 20, 2019
effective date of the direct final rule.
2 81
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FR 74504 (October 26, 2016).
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This 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, this action EPA approves
into the New York’s SIP statedetermined 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, other than the
allowance allocation provisions, 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. The FIP
provisions requiring those units to
participate in the programs (as modified
by this SIP revision) remain in place.
II. Public Comment and EPA Response
During the public comment period,
the EPA received one relevant comment,
which was submitted anonymously. The
comment and the EPA’s response are
discussed in this section of this
rulemaking action.
Comment: The commenter argues that
EPA should disapprove New York’s SIP
revision because EPA’s regulations do
not allow for allocation to a separate
account like the Energy Efficiency and
Renewable Energy Technology (or
EERET) account. The commenter states
that New York has no authority to
unilaterally designate emission credits
to an account that is supposed to be for
emission units to be able to operate and
provide electricity generation to the
citizens of New York and the
surrounding states.
The commenter also states that the
EPA must remove the FIP in place
because the EPA has no authority to
regulate electricity generation; the
CSAPR Update FIPs are illegal and
unauthorized as EPA has no authority to
regulate beyond the fence line; and that
multi-state and multi-facility emission
control schemes are illegal. The
commenter further states that the EPA
must disapprove the SIP since it follows
illegal rules and cites the EPA’s June 19,
2019 Affordable Clean Energy (or ACE)
rule as support for this position.
Response: The EPA disagrees with the
commenter that EPA’s regulations do
not allow for allocation to a separate
account like the EERET account, and
that New York does not have the
authority to designate emission credits
to the EERET account. The commenter
has not identified any provision of the
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CSAPR regulations which they assert
precludes New York’s approach.
CSAPR includes provisions which
allow states to submit, for approval into
the SIP, revisions to modify or replace
the CSAPR FIP requirements while
allowing states to continue to meet their
transport-related obligations.3 Through
such a SIP revision, a state may replace
EPA’s default provisions for allocating
emission allowances among the state’s
units by employing any state-selected
methodology to allocate or auction the
allowances, subject to timing and other
criteria. Additionally, EPA’s CSAPR
rule does not preclude the use of an
energy efficiency set-aside by the state.
New York adopted amendments to 6
NYCRR Part 243, 6 NYCRR Part 244,
and 6 NYCRR Part 245 on November 11,
2018. New York submitted amended 6
NYCRR Parts 243, 244, and 245 to the
EPA as a SIP revision on November 30,
2018. The EPA reviewed and evaluated
New York’s submittal and proposed to
find it approvable because it met CSAPR
rule requirements. These requirements
included: Meeting timeliness and
completeness criteria for submission of
the CSAPR SIP; New York’s allocation
methodology covered all allowances
potentially requiring allocation by the
state, including allocations to existing
and new units, as well as provisions for
the disposition of unallocated Indian
country new-unit set-asides; New York’s
methodology provided assurance that
state allocations do not exceed the state
budget; New York’s methodology
provided for the submission of state
determined allocations by CSAPR rule
deadlines; New York’s rules included
no provisions allowing for alteration of
allocations submitted to EPA or
recorded; and New York’s rules make no
other substantive changes to the federal
trading program regulations beyond the
provisions addressing allowance
allocations. The EPA’s final approval of
a State’s rules would allow the stateselected methodology to replace EPA’s
default allocations, including allocating
emissions allowances to an EERET
account.
Because EPA’s review of the SIP was
only to evaluate compliance with the
CSAPR regulations, the portions of the
comment addressing the legality of the
CSAPR Update FIPs are beyond the
scope of this rulemaking. The
rulemaking promulgating the CSAPR
Update FIPs was separately finalized in
2016, and the EPA did not reopen the
determinations made in the 2016 final
action in its review of New York’s SIP.
Any comments on the legality the
CSAPR Update should have been raised
3 See
40 CFR 52.38, 52.39.
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during the public comment period in
that rulemaking pursuant to CAA
section 307(d)(7)(B), and any challenges
to the determinations made in that
action are properly raised pursuant to
CAA section 307(b)(1) in legal
challenges to that final action. Such
challenges are currently pending in the
D.C. Circuit, see Wisconsin v. EPA, No.
16–1406 (D.C. Cir.). Such issues are not
appropriately raised in comment on
EPA’s review of a SIP submission
merely to determine the state’s
compliance with EPA’s CSAPR
regulations.
III. What action is EPA taking?
The EPA is approving 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 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 also approving 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 approving the 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.’’
The EPA is also amending the
effective date of the inclusion of these
revisions to New York’s SIP because the
revisions were added to the SIP
prematurely on June 20, 2019 when EPA
failed to withdraw its direct final rule
after receiving a comment on our
proposed approval of New York’s
regulations that replace the default
allocation provisions of the CSAPR
federal trading programs. This rule
which responds to the comment
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received finalizes our approval and
corrects the premature effective date for
inclusion in New York’s SIP of revised
versions of 6 NYCRR Part 200, Subpart
200.1; 6 NYCRR Part 200, Subpart 200.9;
6 NYCRR Part 243; 6 NYCRR Part 244;
and 6 NYCRR Part 245.
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 is
approving Parts 200, 243, 244 and 245
because New York’s rules meet the
requirements of the CAA and the 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 sections I
and II above.
This final rule is effective
immediately upon publication in the
Federal Register. Section 553(d) of the
Administrative Procedure Act (5 U.S.C.
553(d)), which generally provides that
final rules may not take effect earlier
than 30 days after publication in the
Federal Register but allows exceptions
where an agency finds good cause and
publishes its finding with the rule,
applies to this action. In this rule, in
accordance with options CSAPR makes
available to states, EPA is approving
into New York’s SIP the State’s rules
which include allocation provisions to
replace the default federally-established
allocations for control periods in 2021
and later years.4 The sooner this rule is
effective, the sooner allowances eligible
for use for the 2021 control period can
4 Under the CSAPR trading programs, allowance
allocations are recorded up to four years in advance
of the control periods for which the allowances are
issued. 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.
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be issued to affected sources in New
York in the amounts determined under
New York rules. EPA therefore finds
good cause to make this final rule
effective immediately upon publication
in the Federal Register.
IV. 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.5
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V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the CAA and applicable
federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting federal
requirements and does not impose
additional requirements beyond those
5 62
FR 27968 (May 22, 1997).
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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
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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 October 7, 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.
Dated: July 22, 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
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42.U.S.C. 7401 et seq.
Subpart A—General Provisions
§ 52.38
[Amended]
2. In § 52.38, paragraph (b)(13)(iii) is
amended by removing ‘‘[none].’’ and
adding in its pace ‘‘New York.’’.
■
Subpart HH—New York
3. In § 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,
■
E:\FR\FM\08AUR1.SGM
08AUR1
38882
Federal Register / Vol. 84, No. 153 / Thursday, August 8, 2019 / Rules and Regulations
Part 243’’, ‘‘Title 6, Part 244’’, and ‘‘Title
6, Part 245’’ to read as follows:
§ 52.1670
*
*
Identification of plan.
*
*
(c) * * *
*
EPA-APPROVED NEW YORK STATE REGULATIONS AND LAWS
State citation
Title/subject
*
Title 6, Part 200,
Subpart 200.1.
State
effective
date
EPA
approval
date
*
05/19/2013
*
*
*
*
08/08/2019 The word odor is removed from the Subpart 200.1(d) definition of ‘‘air
contaminant or air pollutant.’’
*
General Provisions, Definitions.
Comments
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, Referenced Material.
*
01/02/2019
*
*
*
*
08/08/2019 • EPA is approving reference documents that are not Federally enforceable.
• EPA approval finalized at [insert Federal Register citation].
*
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
*
*
*
*
08/08/2019 • EPA approval finalized at [insert Federal Register citation].
01/02/2019
08/08/2019
• EPA approval finalized at [insert Federal Register citation].
01/02/2019
08/08/2019
• EPA approval finalized at [insert Federal Register citation].
Title 6, Part 244 ..
Title 6, Part 245 ..
*
*
*
*
*
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
jbell on DSK3GLQ082PROD with RULES
[EPA–HQ–SFUND–1987–0002; FRL–9997–
43–Region 7]
National Oil and Hazardous
Substances Pollution Contingency
Plan; National Priorities List: Partial
Deletion of the Shaw Avenue Dump
Superfund Site
Environmental Protection
Agency (EPA).
AGENCY:
ACTION:
Final rule.
VerDate Sep<11>2014
15:42 Aug 07, 2019
The Environmental Protection
Agency (EPA) Region 7 announces the
deletion of Operable Unit 1—Chemical
Fill and Contaminated Soil (OU1) of the
Shaw Avenue Dump Superfund Site
(Site) located in Charles City, Floyd
County, Iowa, from the National
Priorities List (NPL). The NPL,
promulgated pursuant to section 105 of
the Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) of 1980, as amended, is
an appendix of the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). This partial
deletion pertains to Operable Unit (OU)
1—Chemical Fill and Contaminated
Soil. OU 2—Groundwater will remain
on the NPL and is not being considered
for deletion as part of this action. The
EPA and the State of Iowa, through the
Iowa Department of Natural Resources,
SUMMARY:
[FR Doc. 2019–16789 Filed 8–7–19; 8:45 am]
Jkt 247001
PO 00000
Frm 00034
Fmt 4700
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determined that all appropriate
response actions under CERCLA other
than operations and maintenance and
five-year reviews have been completed
at OU1. However, this deletion does not
preclude future actions under CERCLA.
DATES: This action is effective August 8,
2019.
ADDRESSES: EPA has established a
docket for this action under Docket ID
no. EPA–HQ–SFUND–1987–0002. All
documents in the docket are listed on
the https://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
E:\FR\FM\08AUR1.SGM
08AUR1
]]>Agencies
[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Rules and Regulations]
[Pages 38878-38882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16789]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2019-0157; FRL-9997-59-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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve revisions 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.
DATES: This final rule is effective on August 8, 2019.
ADDRESSES: EPA has established a docket for this action under Docket ID
number EPA-R02-OAR-2019-0157. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the internet and will be publicly available only in hard copy
form. Publicly available docket materials are available through
www.regulations.gov, or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional availability
information.
FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3702, or by email at
[email protected].
SUPPLEMENTARY INFORMATION
Table of Contents
I. Background
II. Public Comment and EPA Response
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background
On May 21, 2019 (84 FR 22995 and 84 FR 22972), EPA simultaneously
published a proposed rule and a direct final rule 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. The proposed
rule and direct final rule also acted to approve New York's revised
list of definitions that was submitted to the EPA on July 23, 2015.
---------------------------------------------------------------------------
\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 EPA received a public comment on the proposed rule and intended
to withdraw the direct final rule prior to the effective date of June
20, 2019. However, the EPA inadvertently did not withdraw the direct
final rule prior to that date and the rule prematurely became effective
on June 20, 2019, revising the New York SIP to include revised versions
of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR), Part
200, Subpart 200.1; 6 NYCRR Part 200, Subpart 200.9; 6 NYCRR Part 243;
6 NYCRR Part 244; and 6 NYCRR 245 on that date. In this action, as
described in more detail below, the EPA is responding to the public
comment submitted on the proposed revisions to New York's SIP, approves
the revised versions of these regulations in New York's SIP, and is
amending the effective date of the regulations' inclusion into the SIP
to correct our failure to withdraw the direct final rule prior to June
20, 2019.
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 to incorporate CSAPR requirements into
[[Page 38879]]
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.
In the notice of proposed rulemaking, the EPA had proposed 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 also proposed 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 Clean Air Interstate Rule
(CAIR) trading 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 12,
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 12, 2015 adopted rules that
implemented New York's CSAPR program with new versions of New York's
CSAPR trading program rules. The rules proposed to be repealed from the
SIP were 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 also proposed to approve into the New York SIP a revised
version of 6 NYCRR Part 200 (Subpart 200.1) to address updated
definitions at Part 200.1(f) that were submitted to the EPA on July 23,
2015, and 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.
The EPA did not take action on the previous version of 6 NYCRR Part
243 included in New York's December 1, 2015 submission. Following that
submission, the EPA finalized the CSAPR Update rule \2\ 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 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''.
---------------------------------------------------------------------------
\2\ 81 FR 74504 (October 26, 2016).
---------------------------------------------------------------------------
In this action, the EPA is responding to the public comment
submitted on the proposed revisions to New York's SIP, approves the
revised versions of 6 NYCRR Part 200, Subpart 200.1; 6 NYCRR Part 200,
Subpart 200.9; 6 NYCRR Part 243; 6 NYCRR Part 244; and 6 NYCRR Part 245
regulations in New York's SIP, and is amending the effective date of
the regulations' inclusion into the SIP to correct our failure to
withdraw the direct final rule (after the EPA received adverse public
comments) prior to the June 20, 2019 effective date of the direct final
rule.
This 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, this action EPA approves into
the 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,
other than the allowance allocation provisions, 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. The FIP provisions
requiring those units to participate in the programs (as modified by
this SIP revision) remain in place.
II. Public Comment and EPA Response
During the public comment period, the EPA received one relevant
comment, which was submitted anonymously. The comment and the EPA's
response are discussed in this section of this rulemaking action.
Comment: The commenter argues that EPA should disapprove New York's
SIP revision because EPA's regulations do not allow for allocation to a
separate account like the Energy Efficiency and Renewable Energy
Technology (or EERET) account. The commenter states that New York has
no authority to unilaterally designate emission credits to an account
that is supposed to be for emission units to be able to operate and
provide electricity generation to the citizens of New York and the
surrounding states.
The commenter also states that the EPA must remove the FIP in place
because the EPA has no authority to regulate electricity generation;
the CSAPR Update FIPs are illegal and unauthorized as EPA has no
authority to regulate beyond the fence line; and that multi-state and
multi-facility emission control schemes are illegal. The commenter
further states that the EPA must disapprove the SIP since it follows
illegal rules and cites the EPA's June 19, 2019 Affordable Clean Energy
(or ACE) rule as support for this position.
Response: The EPA disagrees with the commenter that EPA's
regulations do not allow for allocation to a separate account like the
EERET account, and that New York does not have the authority to
designate emission credits to the EERET account. The commenter has not
identified any provision of the
[[Page 38880]]
CSAPR regulations which they assert precludes New York's approach.
CSAPR includes provisions which allow states to submit, for
approval into the SIP, revisions to modify or replace the CSAPR FIP
requirements while allowing states to continue to meet their transport-
related obligations.\3\ Through such a SIP revision, a state may
replace EPA's default provisions for allocating emission allowances
among the state's units by employing any state-selected methodology to
allocate or auction the allowances, subject to timing and other
criteria. Additionally, EPA's CSAPR rule does not preclude the use of
an energy efficiency set-aside by the state.
---------------------------------------------------------------------------
\3\ See 40 CFR 52.38, 52.39.
---------------------------------------------------------------------------
New York adopted amendments to 6 NYCRR Part 243, 6 NYCRR Part 244,
and 6 NYCRR Part 245 on November 11, 2018. New York submitted amended 6
NYCRR Parts 243, 244, and 245 to the EPA as a SIP revision on November
30, 2018. The EPA reviewed and evaluated New York's submittal and
proposed to find it approvable because it met CSAPR rule requirements.
These requirements included: Meeting timeliness and completeness
criteria for submission of the CSAPR SIP; New York's allocation
methodology covered all allowances potentially requiring allocation by
the state, including allocations to existing and new units, as well as
provisions for the disposition of unallocated Indian country new-unit
set-asides; New York's methodology provided assurance that state
allocations do not exceed the state budget; New York's methodology
provided for the submission of state determined allocations by CSAPR
rule deadlines; New York's rules included no provisions allowing for
alteration of allocations submitted to EPA or recorded; and New York's
rules make no other substantive changes to the federal trading program
regulations beyond the provisions addressing allowance allocations. The
EPA's final approval of a State's rules would allow the state-selected
methodology to replace EPA's default allocations, including allocating
emissions allowances to an EERET account.
Because EPA's review of the SIP was only to evaluate compliance
with the CSAPR regulations, the portions of the comment addressing the
legality of the CSAPR Update FIPs are beyond the scope of this
rulemaking. The rulemaking promulgating the CSAPR Update FIPs was
separately finalized in 2016, and the EPA did not reopen the
determinations made in the 2016 final action in its review of New
York's SIP. Any comments on the legality the CSAPR Update should have
been raised during the public comment period in that rulemaking
pursuant to CAA section 307(d)(7)(B), and any challenges to the
determinations made in that action are properly raised pursuant to CAA
section 307(b)(1) in legal challenges to that final action. Such
challenges are currently pending in the D.C. Circuit, see Wisconsin v.
EPA, No. 16-1406 (D.C. Cir.). Such issues are not appropriately raised
in comment on EPA's review of a SIP submission merely to determine the
state's compliance with EPA's CSAPR regulations.
III. What action is EPA taking?
The EPA is approving 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 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 also approving 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 approving the 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.''
The EPA is also amending the effective date of the inclusion of
these revisions to New York's SIP because the revisions were added to
the SIP prematurely on June 20, 2019 when EPA failed to withdraw its
direct final rule after receiving a comment on our proposed approval of
New York's regulations that replace the default allocation provisions
of the CSAPR federal trading programs. This rule which responds to the
comment received finalizes our approval and corrects the premature
effective date for inclusion in New York's SIP of revised versions of 6
NYCRR Part 200, Subpart 200.1; 6 NYCRR Part 200, Subpart 200.9; 6 NYCRR
Part 243; 6 NYCRR Part 244; and 6 NYCRR Part 245.
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 is approving Parts 200, 243, 244 and 245 because New York's rules
meet the requirements of the CAA and the 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 sections I and II above.
This final rule is effective immediately upon publication in the
Federal Register. Section 553(d) of the Administrative Procedure Act (5
U.S.C. 553(d)), which generally provides that final rules may not take
effect earlier than 30 days after publication in the Federal Register
but allows exceptions where an agency finds good cause and publishes
its finding with the rule, applies to this action. In this rule, in
accordance with options CSAPR makes available to states, EPA is
approving into New York's SIP the State's rules which include
allocation provisions to replace the default federally-established
allocations for control periods in 2021 and later years.\4\ The sooner
this rule is effective, the sooner allowances eligible for use for the
2021 control period can
[[Page 38881]]
be issued to affected sources in New York in the amounts determined
under New York rules. EPA therefore finds good cause to make this final
rule effective immediately upon publication in the Federal Register.
---------------------------------------------------------------------------
\4\ Under the CSAPR trading programs, allowance allocations are
recorded up to four years in advance of the control periods for
which the allowances are issued. 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.
---------------------------------------------------------------------------
IV. 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.\5\
---------------------------------------------------------------------------
\5\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the CAA and
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, 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 October 7, 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.
Dated: July 22, 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 A--General Provisions
Sec. 52.38 [Amended]
0
2. In Sec. 52.38, paragraph (b)(13)(iii) is amended by removing
``[none].'' and adding in its pace ``New York.''.
Subpart HH--New York
0
3. 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,
[[Page 38882]]
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
State citation Title/subject effective EPA approval Comments
date date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Title 6, Part 200, Subpart 200.1. General Provisions, 05/19/2013 08/08/2019 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 08/08/2019 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 08/08/2019 EPA approval
Season Group 2 finalized at [insert
Trading Program. Federal Register
citation].
Title 6, Part 244................ CSAPR NOX Annual 01/02/2019 08/08/2019 EPA approval
Trading Program. finalized at [insert
Federal Register
citation].
Title 6, Part 245................ CSAPR SO2 Group 1 01/02/2019 08/08/2019 EPA approval
Trading Program. finalized at [insert
Federal Register
citation].
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2019-16789 Filed 8-7-19; 8:45 am]
BILLING CODE 6560-50-P
