[Federal Register Volume 65, Number 3 (Wednesday, January 5, 2000)]
[Proposed Rules]
[Pages 421-425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-151]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. NY35-1-200, FRL-6518-5]
Approval and Promulgation of Implementation Plans; Reasonably
Available Control Technology for Oxides of Nitrogen for the State of
New York
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes approval of revisions to the New York State
Implementation Plan (SIP) for ozone. The State submitted this portion
of the implementation plan to satisfy Clean Air Act (the Act)
requirements for adoption of rules for the application of reasonably
available control technology (RACT) for oxides of nitrogen
(NOX) in the entire State. The intended affect of this SIP
revision is to reduce emissions of NOX in order to help
attain the national ambient air quality standard for ozone.
DATES: Written comments must be received on or before February 4, 2000.
ADDRESSES: All comments should be addressed to:
Raymond Werner, Acting Chief, Air Programs Branch, Environmental
Protection Agency, Region II Office, 290 Broadway, 25th Floor, New
York, New York 10007-1866.
Copies of the State submittal and other information are available
at the following addresses for inspection during normal business hours:
Environmental Protection Agency, Region II Office, Air Programs
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division
of Air Resources, 50 Wolf Road, Albany, New York 12233.
FOR FURTHER INFORMATION CONTACT: Ted Gardella, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-4249.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What action is EPA proposing today?
II. Why is EPA proposing approval of New York's SIP revisions?
III. What are EPA's requirements for NOX RACT?
IV. What do New York's SIP revisions contain?
A. SIP revision dated January 20, 1994
B. SIP revision dated April 29, 1999
V. What sources does New York's NOX RACT regulation
affect?
VI. What exemptions does New York's regulation allow?
VII. Were there any approvability issues with New York's
NOX RACT regulation and, if so, how were they resolved?
A. Case-by-Case RACT Determinations
B. Certain Permitting Situation
C. Repowering Compliance Option
VIII. What are EPA's conclusions?
IX. Administrative requirements
I. What Action Is EPA Proposing Today?
EPA proposes approval of New York's revisions to the State
Implementation Plan (SIP) which New York submitted to EPA on January
20, 1994 and April 29, 1999. The January 20, 1994 submittal includes
New York's Subpart 227-2, entitled ``Reasonably Available Control
Technology (RACT) for Oxides of Nitrogen (NOX),'' for
statewide implementation of New York's NOX RACT
requirements, as well as revisions to Part 200, entitled ``General
Provisions,'' Part 201, entitled ``Permits and Certificates,'' and
Subpart 227-1, entitled ``Stationary Combustion Sources.'' The April
29, 1999 submittal includes amendments to Subpart 227-2. EPA proposed
action on other portions (Part 200, Subpart 227-1 and Subpart 227-3) of
the April 29, 1999 submittal in a Federal Register notice published on
October 14, 1999.
II. Why Is EPA Proposing Approval of New York's SIP Revisions?
EPA has evaluated the SIP revisions that New York submitted for
consistency with the Clean Air Act (the Act), EPA guidelines and EPA
policy. EPA has determined that New York's SIP revisions dated January
20, 1994 and April 29, 1999 meet all requirements and, therefore, EPA
proposes approval of New York's SIP revisions to implement and enforce
NOX RACT requirements statewide.
III. What Are EPA's Requirements for NOX RACT?
The air quality planning requirements for the reduction of
NOX emissions through RACT are set out in section 182(f) of
the Act. EPA describes the section 182(f) requirements in a
[[Page 422]]
document, ``State Implementation Plans; Nitrogen Oxides Supplement to
the General Preamble; Clean Air Act Amendments of 1990 Implementation
of Title I; Proposed Rule,'' published November 25, 1992 (57 FR 55620).
Refer to the November 25, 1992 document for detailed information on the
NOX requirements. Also refer to additional guidance
memoranda that EPA released subsequent to the NOX
Supplement. The additional guidance includes: EPA publication EPA-452/
R-96-005 (March 1996) entitled ``NOX Policy Documents for
The Clean Air Act of 1990''; EPA's policy memorandum on the approval
options for generic RACT rules submitted by States (November 1996);
EPA's draft system-wide averaging trading guidance (December 1993);
EPA's publications of ``Alternative Control Technique Documents'' which
are technical documents identifying alternative controls for most
categories of stationary sources of NOX; and other related
EPA policy and guidance documents.
The EPA has defined RACT as the lowest emission limitation that a
particular source is capable of meeting by the application of control
technology that is reasonably available considering technological and
economic feasibility (44 FR 53762, September 17, 1979).
The Act requires that states include requirements, where
practicable, for major stationary sources to include NOX
RACT controls by May 31, 1995. Section 182(f) of the Act requires
statewide application of the NOX RACT requirements.
IV. What Do New York's SIP Revisions Contain?
The technical support document, located in the official file,
includes a full description and detailed discussion of New York's SIP
submittals and revisions. The technical support document for this
proposed action is available from the EPA contact listed above in the
ADDRESSES section. The following is a summary of New York's submittals.
A. SIP Revision Dated January 20, 1994
New York held public hearings in April 1993 on its NOX
RACT plan. Following the public hearings and the comment period, New
York adopted the plan on January 19, 1994. On January 20, 1994, New
York submitted the plan to EPA as a revision to the SIP. EPA reviewed
the plan to determine completeness in accordance with criteria set out
at 40 CFR part 51. On April 15, 1994, EPA found the submittal to be
administratively and technically complete. New York's January 20, 1994
SIP revision contains the following:
1. Subpart 227-2, New York's NOX RACT regulation, as the
enforceable mechanism which includes: a list of the affected sources;
definitions; compliance plan requirements; control requirements
including emission limits; compliance options for fuel switching,
system-wide averaging, alternative RACT, and repowering; testing,
monitoring, and reporting requirements;
2. State rule Part 200 which was amended to add new definitions and
emission testing requirements;
3. State rule Part 201 which revises exemptions for certain sources
so that those units which have the potential to be a major stationary
source of NOX are no longer categorically exempted from
permit and certificate requirements;
4. State rule Subpart 227-1 which contains administrative
revisions;
5. Records from the Public Hearings; and
6. The State's response to public comments.
B. SIP Revision Dated April 29, 1999
The State proposed the April 29, 1999 SIP revision on September 16,
1998, requested public comments by November 9, 1998 and held public
hearings on the revision in November 1998. New York adopted the new and
amended rules on January 12, 1999 and submitted the SIP revision to EPA
on April 29, 1999. EPA determined the submittal administratively and
technically complete on June 18, 1999. New York's SIP revision dated
April 29, 1999 contains the following:
1. Amended Subpart 227-2. The Subpart 227-2 revisions include:
Removal of provisions which are no longer applicable; requirements for
submission of a new RACT compliance plan for sources subject to Subpart
227-3 (New York's NOX emissions budget and allowance
program); additional wording which clarifies New York's approval of low
NOX burners for mid-size boilers; corrections in the
monitoring provisions to require heat input weighted averaging instead
of arithmetic averaging; and requirements that New York submit
individual RACT determinations to EPA as SIP revisions.
2. New Subpart 227-3 and amendments to Part 200 and Subpart 227-1.
EPA has proposed approval of these three rules as published in a
Federal Register document on October 14, 1999 (see 64 FR 55667).
3. Records from the Public Hearings;
4. The State's response to public comments.
V. What Sources Does New York's NOX RACT Regulation
Affect?
In each SIP revision, New York's Subpart 227-2 specifies that
existing major stationary sources must apply RACT to control
NOX emissions. New York defines major stationary sources as
facilities with the potential to emit 25 tons per year NOX
in the severe nonattainment area--the New York City metropolitan area
and the lower Orange County metropolitan area--and 100 tons per year in
the remainder of the State. The New York City metropolitan area
includes the five counties of New York City and the counties of Nassau,
Suffolk, Westchester and Rockland. The lower Orange County metropolitan
area includes the towns of Blooming Grove, Chester, Highlands, Monroe,
Tuxedo, Warwick, and Woodbury. New York identifies these major source
categories as follows: very large boilers, large boilers, mid-size
boilers, small boilers, combustion turbines, internal combustion
engines and other combustion sources. Subpart 227-2 provides a
definition of each source category. These provisions are consistent
with the Act and EPA guidance.
VI. What Exemptions Does New York's Regulation Allow?
Subpart 227-2 contains provisions allowing equipment and source
operations the following four exemptions:
1. Section 227-2.1 allows for exemptions if EPA determines by May
15, 1994 that NOX reductions would have no benefit to the
net ozone air quality. New York provides that source owners, as well as
the State, may petition the EPA for an exemption. This provision
conforms to section 182(f) of the Act. In its April 1999 submittal, New
York deleted this exemption because the May 1994 deadline is past. This
deletion however, does not prevent source owners from petitioning EPA
directly, at any time, since section 182(f) of the Act allows for such
petitions.
2. Section 227-2.3(a)(3) allows an exemption from the requirements
of Subpart 227-2 to sources that provided New York with a schedule to
cease operation by May 31, 1995. This provision is acceptable to EPA
since the Act requires compliance by that date.
3. Section 227-2.4(f)(3) allows an exemption to emergency power
generating units and other units that operate during emergency
situations less than 500 hours per year. This provision is consistent
with EPA guidelines and it also limits the number of operating hours of
exempted units.
[[Page 423]]
4. Section 227-2.4(g) exempts owners from submitting a RACT
determination for combustion installations with NOX
emissions at a de minimis level. This exemption is consistent with the
Act since New York's de minimis level of emissions are well below the
25 tons per year major threshold limit.
VII. Were There Any Approvability Issues With New York's
NOX RACT Regulation and, if So, How Were They Resolved?
The following three approvability issues relate to Subpart 227-2 as
submitted to EPA on January 20, 1994. There are no approvability issues
with the amendments to Subpart 227-2 which New York submitted on April
29, 1999. EPA has determined that the revision has resolved all issues
related to the approval of Subpart 227-2.
A. Case-by-Case RACT Determinations
Provisions within Subpart 227-2 establish a procedure for a case-
by-case determination of what represents RACT for an item of equipment
or source operation. This procedure is applicable if the major
NOX facility contains any source operation or item of
equipment of a category not specifically regulated in Subpart 227-2.
Case-by-case RACT determinations are contained in several sections of
Subpart 227-2 as follows: 227-2.4(a)(2), 227-2.4(b)(2), 227-
2.4(c)(1)(iii), 227-2.4(c)(1)(iv), 227-2.4(e)(3), and 227-2.4(g). EPA
refers to these case-by-case provisions as generic RACT provisions.
Subpart 227-2 requires that the owners and/or operators of an
affected facility submit a RACT proposal if they are not covered by
specific emission limitations. The New York RACT proposal requires that
owners/operators include a technical and economic feasibility analysis
of the possible alternative control measures. Subpart 227-2 provides
for New York to establish emission limits using a RACT determination
specific to the facility.
In addressing the approvability of New York's NOX RACT
generic provisions, EPA had the following two concerns with New York's
January 1994 submittal: (1) Subpart 227-2 did not require that the
State submit approved case-by-case RACT determinations as SIP revisions
for EPA approval, and (2) the State did not document the magnitude of
NOX emissions associated with the generic provisions and
whether they were significant or not. New York needed to address both
these concerns in order for EPA to propose full approval of generic
provisions, instead of conditional approval.
Regarding EPA's first approvability concern, section 110 of the Act
requires that a state adopt and submit, as SIP revisions after public
notice and the opportunity for public comment, enforceable emission
limitations and other control measures and techniques. Although
NOX RACT limitations and requirements that are included in a
permit are federally enforceable, under section 110 case-by-case RACT
determinations would not be federally approvable unless Subpart 227-2
required that such RACT determinations be submitted as SIP revisions
for EPA approval. New York satisfied section 110 of the Act when, in
its April 1999 SIP revision, New York amended Subpart 227-2 by adding
section 227-2.5(e), a new compliance option, that requires the
submittal of State approved case-by-case RACT determinations to EPA for
approval as SIP revisions. Although section 227-2.5(e) refers to all
but one of the State's case-by-case RACT determinations, New York has
indicated that this omission was a mistake and that it intends to
include reference to section 227-2.4(c)(1)(iii), the generic provision
for mid-size boilers that use alternative fuels, in its new amendments
to Subpart 227-2 which it anticipates will be proposed in its next SIP
revision in the fall of 1999. New York's amended April 1999 SIP
revision satisfies EPA's approvability concern with the State's January
1994 submittal.
EPA's second concern relates to whether EPA can approve Subpart
227-2's generic provisions. Generic provisions are those portions of a
regulation which require the application of RACT to an emission point,
but the degree of control is not specified in the rule and is to be
determined on a case-by-case basis taking technological and economic
factors into consideration. On November 7, 1996, EPA issued a policy
memorandum providing additional guidance for approving regulations
which contain these ``generic provisions.'' (Sally Shaver memorandum to
EPA Division Directors, ``Approval Options for Generic RACT Rules
Submitted to Meet the non-CTG VOC RACT Requirement and Certain
NOX RACT Requirements'').
EPA policy allows for the full approval of state generic RACT rules
prior to EPA approval of all major source RACT determinations provided
an analysis is completed that concludes that the remaining source RACT
determinations involve a de minimis level of NOX emissions.
Such an approval does not exempt the remaining sources from RACT;
rather it is a de minimis deferral of the approval of these case-by-
case RACT limits. In a letter dated April 27, 1999, New York provided
sufficient data for EPA to evaluate the de minimis level of
NOX emissions from generic sources in the State. Given the
State's data, EPA has determined that four percent of the
NOX emissions subject to RACT controls have either not yet
been submitted to EPA as SIP revisions or, if submitted, have not yet
been approved by EPA.1 EPA has determined this amount to be
de minimis. The four percent de minimis level includes sixteen
facilities which New York is required to submit as single source SIP
revisions of which seven have been submitted to EPA for approval as SIP
revisions. Therefore, EPA has determined that New York's NOX
RACT regulation conforms with EPA's policy regarding the approval of
generic RACT provisions or rules, thereby allowing EPA to propose
approval of Subpart 227-2. Section 227-2.5(e) requires New York to
submit the remaining case-by-case RACT determinations to EPA for
approval as SIP revisions.
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\1\ EPA guidance provides that where the non-approved RACT
requirements concern sources whose emissions represent less than 5%
of the 1990 stationary source NOX inventory, excluding
utility boilers, it may be appropriate to issue a full approval of
the generic RACT regulation.
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B. Certain Permitting Situation
The last sentence of section 227-2.3(a)(1) allows a facility with a
valid certificate to operate or permit to construct, i.e. permits, to
continue operating without implementing RACT until a new permit is
issued that specifies the RACT requirements. Therefore, section 227-
2.3(a)(1) potentially allows affected sources to continue operation,
under valid permits, without implementing RACT by May 31, 1995 which
would be a violation of the Act.
In its letter dated April 27, 1999, New York indicated that, to the
best of their knowledge, every source subject to Subpart 227-2 has
already received a permit. Furthermore, in the same letter, New York
committed to include all emission limits and requirements of Subpart
227-2 in all applicable permits within twelve months of EPA's final
approval of Subpart 227-2.
If EPA had acted on Subpart 227-2 soon after receiving the January
1994 submittal, we would have proposed disapproval because section 227-
2.3(a)(1) would potentially allow some sources to operate in violation
of the Act. However, since the State has confirmed in its recent letter
that essentially all permits have been issued to all affected sources,
a disapproval would have no practical effect at this
[[Page 424]]
time. Therefore, this issue is resolved to EPA's satisfaction.
C. Repowering Compliance Option
Section 227-2.5(c) allows a facility to comply with Subpart 227-2
by opting to repower. To do so, the owner/operator must, by December
31, 1994, enter into a federally enforceable permit wherein it commits
to permanently shut down and dismantle the boiler prior to May 15, 1999
and wherein it commits to repower. This option also requires
NOX emissions from the repowered unit to meet specific
emission limits that are more stringent than the State's presumptive
RACT limits.
We have determined that the State's repowering compliance option
does not fully satisfy EPA's guidance on repowering in that it does not
require a milestone schedule for repowering nor does it require RACT
measures during the interim period between May 31, 1995 and the date
the facility is due to repower. These omissions are not acceptable to
EPA. However, since the repowering option can no longer be applied,
resolution of the discrepancies between EPA guidance and the State's
regulation can have no practical effect because it's too late to
enforce interim RACT or milestone scheduling requirements established
by EPA guidance. The State has advised EPA that only one source in New
York has opted to repower. The State's emission limitations for this
option meets EPA requirements for repowering and will therefore be
enforceable when EPA approves Subpart 227-2.
VIII. What Are EPA's Conclusions?
EPA proposes approval of the two SIP revisions that implement New
York's NOX RACT Program throughout the State, regardless of
the nonattainment status. The first SIP revision, dated January 20,
1994, includes Subpart 227-2, and revisions to Parts 200 and 201, and
Subpart 227-1. The second SIP revision, dated April 29, 1999, includes
amendments to Subparts 227-2.
IX. Administrative Requirements
Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.
Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This proposed rule will not have a significant impact on
a substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act do not create
any new requirements but simply approve requirements that the State is
already imposing. Therefore, because the Federal SIP approval does not
create any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA,
[[Page 425]]
427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
annual costs to State, local, or tribal governments in the aggregate;
or to private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the proposed approval action does not
include a federal mandate that may result in estimated annual costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This federal action approves
pre-existing requirements under State or local law, and imposes no new
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: December 21, 1999.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 00-151 Filed 1-4-00; 8:45 am]
BILLING CODE 6560-50-P
