Air quality implementation plans; approval and promulgation; various States: New York,

[Federal Register: January 5, 2000 (Volume 65, Number 3)]

[Proposed Rules]

[Page 421-425]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr05ja00-23]

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.

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 NOXin 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

1. 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 NOXRACT? IV. What do New York's SIP revisions contain?

   1. SIP revision dated January 20, 1994

   2. SIP revision dated April 29, 1999 V. What sources does New York's NOXRACT regulation affect? VI. What exemptions does New York's regulation allow? VII. Were there any approvability issues with New York's NOXRACT regulation and, if so, how were they resolved?

   1. Case-by-Case RACT Determinations

   2. Certain Permitting Situation

   3. Repowering Compliance Option VIII. What are EPA's conclusions? IX. Administrative requirements

1. 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 NOXRACT 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.

2. 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 NOXRACT requirements statewide.

3. What Are EPA's Requirements for NOXRACT?

   The air quality planning requirements for the reduction of NOXemissions through RACT are set out in section 182(f) of the Act. EPA describes the section 182(f) requirements in a

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   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 NOXrequirements. 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 ``NOXPolicy 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 NOXRACT requirements.

4. 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.

   1. 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 NOXRACT 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 NOXare 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.

   2. 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 NOXemissions budget and allowance program); additional wording which clarifies New York's approval of low NOXburners 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.

5. What Sources Does New York's NOXRACT Regulation Affect?

   In each SIP revision, New York's Subpart 227-2 specifies that existing major stationary sources must apply RACT to control NOXemissions. 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.

6. 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 NOXreductions 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.

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   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.

7. Were There Any Approvability Issues With New York's NOXRACT 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.

   1. 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 NOXfacility 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 NOXRACT 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 NOXemissions 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 NOXRACT 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 NOXRACT 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 NOXemissions. 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 NOXemissions from generic sources in the State. Given the State's data, EPA has determined that four percent of the NOXemissions 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.1EPA 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.

      \1\ EPA guidance provides that where the non-approved RACT requirements concern sources whose emissions represent less than 5% of the 1990 stationary source NOXinventory, excluding utility boilers, it may be appropriate to issue a full approval of the generic RACT regulation.

   2. 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

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      time. Therefore, this issue is resolved to EPA's satisfaction.

   3. 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 NOXemissions 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.

8. What Are EPA's Conclusions?

   EPA proposes approval of the two SIP revisions that implement New York's NOXRACT 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.

9. 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,

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   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. 00-151Filed1-4-00; 8:45 am]

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