[Federal Register Volume 64, Number 198 (Thursday, October 14, 1999)]
[Proposed Rules]
[Pages 55667-55671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26856]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NY33-1-197, FRL-6457-3]


Approval and Promulgation of Implementation Plans; New York; 
Nitrogen Oxides Budget and Allowance Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency proposes approval of New 
York's State Implementation Plan (SIP) revision for ozone. This SIP 
revision relates to New York's portion of the Ozone Transport 
Commission's September 27, 1994 Memorandum of Understanding, which 
includes a regional nitrogen oxides budget and allowance 
(NOX Budget) trading program that will significantly reduce 
NOX emissions generated within the Ozone Transport Region. 
Today's action proposes approval of New York's regulations which 
implement Phase II of the NOX Budget Trading Program to 
reduce NOX, and intends to help meet the national ambient 
air quality standard for ozone.

DATES: EPA must receive written comments on or before November 15, 
1999.

ADDRESSES: Address all comments 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 supporting documents are 
available for inspection during normal business hours, at the following 
addresses:

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: Richard Ruvo, Air Programs Branch, 
Environmental Protection Agency Region II, 290 Broadway, 25th Floor, 
New York, New York 10007-1866, (212) 637-4014.

SUPPLEMENTARY INFORMATION:

Overview

    The Environmental Protection Agency (EPA) proposes approval of the 
New York State Department of Environmental Conservation's (New York's) 
Nitrogen Oxides Budget and Allowance (NOX Budget) Trading 
Program.
    The following table of contents describes the format for this 
SUPPLEMENTARY INFORMATION section:
EPA's Action
    What Action Is EPA Proposing Today?
    Why is EPA Proposing this Action?
    What is a Budget and Allowance Trading Program?
    What Guidance did EPA Use to Evaluate New York's Program?
    What is EPA's Evaluation of New York's Program?
New York's NOX Budget Trading Program
    What is the Ozone Transport Commission's Memorandum of 
Understanding (OTC MOU)?
    Which States Signed the OTC MOU?
    What Does the OTC MOU Require?
    How Did States Meet the OTC MOU?
    How Did New York Meet the OTC MOU?
    How Does New York's Program Protect the Environment?
    How Will New York and EPA Enforce the Program?
    When Did New York Propose and Adopt the Program?
    When Did New York Submit the Program to EPA and What Did it 
Include?
    What Other Significant Items Relate to New York's Program?
Conclusion
Administrative Requirements

EPA's Action

What Action Is EPA Proposing Today?

    EPA proposes approval of a revision to New York's ozone State 
Implementation Plan (SIP) which New York submitted on April 29, 1999. 
This SIP revision relates to New York's new Subpart 227-3, ``Pre-2003 
Nitrogen Oxides Emissions Budget and Allowance Program'' regulation for 
New York's NOX Budget Trading Program.

Why Is EPA Proposing This Action?

    EPA is proposing this action to:
     Give you the opportunity to submit written comments on 
EPA's proposed action, as discussed in the DATES and ADDRESSES sections
     Fulfill New York's and EPA's requirements under the Clean 
Air Act (the Act)
     Make New York's NOX Budget Trading Program 
federally-enforceable and available for credit toward the attainment 
SIP.

What Is a Budget and Allowance Trading Program?

    Air emissions trading uses market forces to reduce the overall cost 
of compliance for sources, such as a power plant, while maintaining 
emission reductions and environmental benefits. One type of market-
based program is an

[[Page 55668]]

emissions budget and allowance trading program, also commonly referred 
to as a cap and trade program.
    In a budget and allowance trading program, the state or EPA set a 
regulatory limit, or budget, on mass emissions from a specific group of 
sources. The state or EPA assigns or allocates allowances to the 
sources, authorizing emissions up to the level of the budget. Sources 
may sell or trade allowances with other sources, cost-effectively 
complying with the budget. The budget limits the total number of 
allocated allowances. The total effect is to reduce emissions. An 
example of a budget and allowance trading program is EPA's Acid Rain 
Program for reducing sulfur dioxide emissions.

What Guidance Did EPA Use To Evaluate New York's Program?

    In 1994, EPA issued Economic Incentive Program (EIP) rules and 
guidance (40 CFR part 51, subpart U), that outlines requirements for 
establishing EIPs in cases where the Act requires States adopt EIPs to 
meet the ozone and carbon monoxide standards in designated 
nonattainment areas. There is no requirement for New York to submit an 
EIP. However, since subpart U also contains guidance on the development 
of voluntary EIPs, New York followed the EIP guidance in the 
development and submittal of its NOX Budget Trading Program.
    EPA evaluated New York's NOX Budget Trading Program to 
determine whether the Program meets the SIP requirements described in 
section 110 of the Act. EPA also evaluated the Program using the EIP of 
1994 as guidance for voluntary EIPs, in coordination with other 
guidance documents.

What Is EPA's Evaluation of New York's Program?

    EPA determined New York's new Subpart 227-3 regulation for New 
York's NOX Budget Trading Program is consistent with EPA's 
guidance. Specifically, New York's NOX Budget Trading 
Program is consistent with EPA's EIP guidance of 1994.
    New York's Subpart 227-3 contains provisions for definitions, 
program applicability, opt-ins, annual allowance allocation, 
permitting, allowance transfer, allowance banking, early reduction 
credits, the NOX Allowance Tracking System, monitoring, 
recordkeeping, reporting, end-of-season reconciliation, compliance 
certification, excess emissions deduction, the program audit, and 
penalties.
    Given the documentation in the SIP submittal and the provisions of 
New York's NOX Budget Trading Program, and New York's 
commitment for a periodic program audit, EPA determined New York will 
continue to meet the reasonable further progress and SIP attainment 
requirements.
    Also, EPA has determined that the amendments and administrative 
changes made to Part 200, Subpart 227-1, and Subpart 227-2 are 
consistent with Subpart 227-3, and EPA's guidance.
    A Technical Support Document (TSD), prepared in support of this 
proposed action, contains the full description of New York's submittal 
and EPA's evaluation. A copy of the TSD is available upon request from 
the EPA Regional Office listed in the ADDRESSES section.

New York's NOX Budget Trading Program

What Is the Ozone Transport Commission's Memorandum of Understanding?

    The Ozone Transport Commission (OTC) adopted a Memorandum of 
Understanding (MOU) on September 27, 1994, which committed the 
signatory states to the development and proposal of a region-wide 
reduction in NOX emissions, with one phase of reductions by 
1999 and another phase of reductions by 2003. Since the Act required 
reasonably available control technology (RACT) to reduce NOX 
emissions by May of 1995, the OTC MOU refers to the reduction in 
NOX emissions by 1999 as Phase II and the reduction in 
NOX emissions by 2003 as Phase III.

Which States Signed the OTC MOU?

    The OTC states include Maine, New Hampshire, Vermont, 
Massachusetts, Connecticut, Rhode Island, New York, New Jersey, 
Pennsylvania, Maryland, Delaware, the northern counties of Virginia and 
the District of Columbia. All of the OTC jurisdictions, with the 
exception of the Commonwealth of Virginia, signed the September 27, 
1994 MOU.

What Does the OTC MOU Require?

    The OTC MOU requires a reduction in ozone season (May 1 to 
September 30) NOX emissions from utility and large 
industrial combustion facilities within the Ozone Transport Region. 
This reduction furthers the effort to achieve the health-based national 
ambient air quality standard for ozone. In the MOU, the OTC states 
agreed to propose regulations for the control of NOX 
emissions according to the following guidelines:
     The level of required NOX reductions is from a 
1990 baseline emissions level
     The reduction would vary by location, or zone, and use a 
two-phase region-wide trading program
     The reduction required by May 1, 1999 is the less 
stringent of the following:
    a. The affected facilities in the inner zone will reduce their 
NOX emission rate by 65% from the 1990 baseline, or emit 
NOX at a rate no greater than 0.20 pounds per million Btu
    b. The affected facilities in the outer zone will reduce their 
NOX emission rate by 55% from the 1990 baseline, or emit 
NOX at a rate no greater than 0.20 pounds per million Btu
     The reduction required by May 1, 2003 is the less 
stringent of the following:
    c. The affected facilities in the inner and outer zones will reduce 
their NOX emission rate by 75% from the 1990 baseline, or 
emit NOX at a rate no greater than 0.15 pounds per million 
Btu
    d. The affected facilities in the northern zone will reduce their 
NOX emission rate by 55% from the 1990 baseline, or emit 
NOX at a rate no greater than 0.20 pounds per million Btu.
    The inner zone consists of all contiguous moderate and above 
nonattainment areas in the OTC, except those located in Maine. The 
outer zone consists of the remainder of the OTC, except the northern 
zone. The northern zone consists of Maine, Vermont and New Hampshire 
(except for its moderate and above nonattainment areas) and the 
northeastern attainment portion of New York.
    New York must meet the requirements for the inner, outer and 
northern zones.

How Did States Meet the OTC MOU?

    First, after consideration of the reductions required in the OTC 
MOU, the OTC States developed a 1990 baseline emission level and the 
emission budgets for 1999 and 2003. The NOX Budget Trading 
Program caps NOX emissions in the Ozone Transport Region at 
219,000 tons in 1999 and 143,000 tons in 2003, less than half of the 
1990 baseline emission level of 490,000 tons.
    Then, the OTC charged a Task Force of representatives from the OTC 
States, organized through the Northeast States for Coordinated Air Use 
Management (NESCAUM) and the Mid-Atlantic Regional Air Management 
Association (MARAMA), with the task of developing a model rule to 
implement the program defined by the OTC MOU. During 1995 and 1996, the 
NESCAUM/MARAMA NOX Budget Task Force worked with

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EPA, as well as representatives from industry, utilities, and 
environmental groups, and developed a model rule as a template for OTC 
states to adopt their own rules to implement the OTC MOU. EPA's EIP 
rules formed the general regulatory framework for the model rule. The 
OTC issued the model rule on May 1, 1996. The model rule was intended 
to be used by the OTC states to implement the Phase II reductions 
called for in the MOU. The model rule does not specifically include the 
implementation of Phase III.

How Did New York Meet the OTC MOU?

    In accordance and consistent with the NESCAUM/MARAMA NOX 
Budget model rule issued in May 1996, New York developed their 
regulation, new Subpart 227-3 ``Pre-2003 Nitrogen Oxides Emissions 
Budget and Allowance Program.''
    Subpart 227-3 includes reduction requirements to implement Phase II 
of the OTC's MOU. The regulation includes provisions for a regional 
NOX Budget Trading Program, and establishes NOX 
emission allowances for each NOX control period beginning 
May 1, 1999 through the NOX control period ending September 
30, 2002 (Phase II). New York's SIP submittal identifies the budget 
sources and their initial NOX allowance allocations.

How Does New York's Program Protect the Environment?

    Specific to New York, the NOX Budget Program will result 
in NOX emissions reductions during the ozone season of 46% 
between 1990 and 2002 from applicable sources. In 1990, NOX 
emissions from NOX Budget sources totaled more than 82,000 
tons during the ozone season. In 1995, following New York's 
NOX RACT rules, emissions of NOX were reduced to 
about 52,300 tons during the ozone season. The adopted NOX 
Budget Program rules will further reduce NOX emissions to 
46,959 tons during the ozone seasons from 1999 through 2002. The 
NOX Budget Program accounts for an additional 64 tons per 
day of NOX reductions beyond NOX RACT in 1999 and 
76 tons per day in 2002.
    In addition to contributing to attainment of the ozone standard, 
decreases of NOX emissions will also likely help improve the 
environment in several important ways. On a national scale, decreases 
in NOX emissions will also decrease acid deposition, 
nitrates in drinking water, excessive nitrogen loadings to aquatic and 
terrestrial ecosystems, and ambient concentrations of nitrogen dioxide, 
particulate matter and toxics. On a global scale, decreases in 
NOX emissions will, to some degree, reduce greenhouse gases 
and stratospheric ozone depletion.

How Will New York and EPA Enforce the Program?

    Under New York's NOX Budget Trading Program, New York 
allocates allowances to budget sources. Each allowance permits a source 
to emit one ton of NOX during the seasonal control period. 
For each ton of NOX discharged in a given control period, 
EPA will remove one allowance from the source's allowance account. The 
source, or any other source will never use this allowance again for 
compliance. This is known as a retirement of the allowance.
    Allowances may be bought, sold, or banked. Unused allowances may be 
banked for future use, with limitation. Each budget source must comply 
with the program by demonstrating at the end of each control period 
that actual emissions do not exceed the amount of allowances held for 
that period. However, regardless of the number of allowances a source 
holds, it cannot emit at levels that would violate other federal or 
state limits, for example, RACT, new source performance standards, or 
Title IV.
    The State and EPA will determine compliance by ensuring that 
allowances held by a source at the end of each control period meet or 
exceed the emissions for that source for the given control period. 
Source owners will monitor emissions by certified monitoring systems 
and must report resulting data to EPA. Violations are also possible for 
not adhering to monitoring, reporting and record keeping requirements. 
Lastly, the federally-enforceable operating permits for budget sources 
contain the applicable requirements of the NOX Budget 
Program.

When Did New York Propose and Adopt the Program?

    New York proposed their NOX Budget Trading Program on 
September 16, 1998 and held public hearings on November 2 and 4, 1998. 
New York requested public comments by November 9, 1998. New York 
adopted the NOX Budget Trading Program on January 12, 1999 
with an effective date of March 5, 1999.

When Did New York Submit the Program to EPA and What Did It Include?

    New York submitted its NOX Budget Trading Program SIP 
revision to EPA on April 29, 1999. EPA determined the submittal 
administratively and technically complete on June 18, 1999.
    New York's NOX Budget Trading Program SIP revision 
included the following elements:
     New Subpart 227-3
     Amended Part 200, Subpart 227-1 and 227-2
     Source List and Allowance Allocation File, as supporting 
information
     Opt-in application and early reduction credit 
applications, as supporting information.

What Other Significant Items Relate to New York's Program?

     New York's NOX Budget Trading Program SIP 
revision also fulfills the State's commitments to adopt the 
NOX Budget Program with respect to the Alternative Ozone 
Attainment Demonstration submittals sent to EPA on September 4, 1997 
and November 27, 1998.
     New York's Subpart 227-3 currently contains the 
NOX emissions budget and allocation only for 1999 through 
the ozone season of 2002, referred to as ``Phase II'' of the 
NOX Budget Trading Program.
    However, the OTC MOU obligates New York to require its allowance 
program sources to make specific additional NOX reductions 
by May 1, 2003 and continue to make reductions thereafter, i.e., 
``Phase III.'' Additionally, New York's attainment demonstrations will 
rely on the NOX reductions associated with the OTC program 
in 2003 and beyond to achieve attainment with the one hour ozone 
standard.
    In the response to comments, January 27, 1999 adoption documents, 
New York said it remains committed to the OTC MOU Phase III emissions 
reductions beginning in 2003. New York committed to implementing Phase 
III in its ``April 1998 SIP submittal'' to EPA. New York commits to 
implementing NOX control measures at least as stringent as 
those called for in Phase III.
    In its current form, Subpart 227-3 is approvable for 1999, 2000, 
2001, and 2002. However, in order to meet the interstate MOU and for 
New York to meet its attainment demonstration commitments, New York 
will need to amend their regulations to establish the NOX 
caps in the State during 2003 and beyond.
    In September 1998, EPA issued the final Regional Transport of Ozone 
Rule (``NOX SIP Call'') requiring 22 eastern States and the 
District of Columbia to submit SIP's to address the regional transport 
of ground-level ozone through reductions in NOX. New York 
did not submit the April 29, 1999 SIP revision for Subpart 227-3 to 
satisfy the requirements of the NOX SIP Call.

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Therefore, in order to meet EPA's NOX SIP Call, New York 
will need to submit an additional SIP revision that establishes the 
NOX caps for the State during 2003 and beyond.

Conclusion

    EPA proposes approval of the New York SIP revision for Subpart 227-
3, which implements Phase II of the OTC's MOU to reduce NOX. 
This SIP revision implements New York's NOX Budget Trading 
Program.
    EPA requests public comment on the issues discussed in today's 
action. EPA will consider all public comments before taking final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to the EPA Regional office 
listed in the ADDRESSES section.

Administrative Requirements

Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under Executive Order (E.O.) 12866, 
entitled ``Regulatory Planning and Review.''

Executive Order on Federalism

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires EPA to 
develop an effective process permitting elected officials and other 
representatives of state, local, and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of E.O. 12875 
do not apply to this rule.
    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, [64 FR 43255 (August 10, 1999),] 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612, [52 FR 41685 (October 30, 1987),] on federalism 
still applies. This rule will not have a substantial direct effect on 
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 12612. 
The rule affects only one State, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

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 E.O. 
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 E.O. 13045 because it is not an 
economically significant regulatory action as defined by E.O. 12866, 
and it does not address environmental health or safety risk that would 
have a disproportionate effect on children.

Executive Order 13084

    Under E.O. 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, E.O. 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 E.O. 13084 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, 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

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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: September 30, 1999.
William J. Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 99-26856 Filed 10-13-99; 8:45 am]
BILLING CODE 6560-50-U