[Federal Register Volume 70, Number 139 (Thursday, July 21, 2005)]
[Proposed Rules]
[Pages 42021-42023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14407]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. R02-OAR-2005-NY-0003, FRL-7942-6]


Approval and Promulgation of Implementation Plans; New York State 
Implementation Plan Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency is proposing to approve a 
revision to the New York State Implementation Plan (SIP) concerning New 
York's permitting program. The

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SIP revision consists of amendments to Title 6 of the New York Codes, 
Rules and Regulations, Part 201, ``Permits and Certificates.'' The 
intended effect of this proposal is to incorporate administrative 
changes to New York's permitting program into the SIP.

DATES: Comments must be received on or before August 22, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID Number R02-OAR-2005-NY-0003 by one of the following 
methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    1. Agency Web site: http://docket.epa.gov/rmepub/. Regional 
Material in EDocket (RME), EPA's electronic public docket and comment 
system, is EPA's preferred method for receiving comments. Once in the 
system, select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
    2. E-mail: [email protected].
    3. Fax: (212) 637-3901.
    4. Mail: ``RME ID Number R02-OAR-2005-NY-0003,'' Raymond Werner, 
Chief, Air Programs Branch, Environmental Protection Agency, Region 2 
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
    5. Hand Delivery or Courier. Deliver your comments to: Raymond 
Werner, Chief, Air Programs Branch, Environmental Protection Agency, 
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30 excluding Federal 
holidays.
    A copy of the New York's submittal is available at the following 
addresses for inspection during normal business hours:
    Environmental Protection Agency, Region 2 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, 625 Broadway, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3381 or [email protected].

SUPPLEMENTARY INFORMATION:

I. What Was Included in New York's Submittal?

    On June 16, 1996, David Sterman, then Deputy Commissioner, New York 
State Department of Environmental Conservation (NYSDEC), submitted to 
EPA a revision to the State Implementation Plan (SIP) which included 
revisions to Title 6 of the New York Codes, Rules and Regulations 
(NYCRR), Part 201, ``Permits and Certificates.'' The revisions to Part 
201 were submitted by New York in support of its title V Operating 
Permit Program under the Clean Air Act (Act), and became State 
effective on July 7, 1996. New York requested at that time that 
Subparts 201-1, 201-2, 201-3, 201-4, 201-5, 201-7, 201-8 and Appendix B 
be incorporated into the federally approved SIP, replacing the existing 
federally approved version of Part 201. EPA has deferred taking action 
on those revisions to Part 201 due to unresolved concerns raised by the 
EPA and NYSDEC regarding specific Subparts. However, on May 27, 2005, 
Carl Johnson, Deputy Commissioner, NYSDEC, submitted a SIP revision 
requesting EPA's approval of only Subparts 201-7.1, ``General'' and 
201-7.2, ``Emission Capping Using Synthetic Minor Permits,'' as were 
State effective on July 7, 1996, and the removal of Subpart 201.5(e) of 
the existing federally approved version of Part 201.

II. What Provisions to Part 201 Is EPA Acting On?

A. Subparts 201-7.1 and 201-7.2

    The Subpart 201-7.1 and 201-7.2 provisions concern ``federally 
enforceable emission caps.'' These provisions allow owners or operators 
of stationary sources to accept permit conditions which restrict or 
``cap'' emissions in order to avoid being subject to one or more 
applicable requirements regarding the source or emission unit. 
Typically, such a source has actual emissions substantially below its 
potential emissions and the cap would prevent increasing emissions. The 
owner or operator applying for an emission cap permit modification must 
include a proposed monitoring, recordkeeping, and reporting strategy 
that will be used to demonstrate that the emissions limitations under 
the proposed cap are verifiable, and enforceable, along with the 
proposed permit terms and conditions. Capping methods may include: The 
reduction in the hours of operation; reformulations relating to the 
cap, installation of control equipment; and/or other process changes.
    On an annual basis, beginning one year after the granting of an 
emissions cap, the responsible official shall provide a certification 
to the NYSDEC that the facility has operated all emission units within 
the limits imposed by the emission cap. Facilities subject to this 
provision must keep records on-site for a minimum of five years. 
Emission caps established by New York pursuant to Subpart 201-7.2 are 
subject to public review and comment, as required by 201-7.2(b).
    Although Subpart 201-7.1 makes reference to Subpart 201-7.3, EPA is 
not taking action on Subpart 201-7.3 at this time. However, Subpart 
201.7.3 remains State enforceable.
    EPA has determined that New York's revised Subparts 201-7.1 and 
201-7.2 can be incorporated into the SIP. EPA recognizes federally 
enforceable limits or caps on potential to emit to be approvable. In 
addition, New York's revised Subparts 201-7.1 and 201-7.2 are designed 
to ensure that the limits on potential to emit are legally and 
practically enforceable. An August 27, 1996, EPA policy memorandum from 
John S. Seitz, Director, Office of Air Quality Planning and Standards, 
entitled ``Extension of January 25, 1995 Potential to Emit Transition 
Policy'' states that, in light of the court's decision in Clean Air 
Implementation Project v. EPA, No. 96-1224 (D.C. Cir., June 28, 1996), 
the term ``federally enforceable'' in 40 CFR 70.2 should now be read to 
mean ``federally enforceable or legally and practicably enforceable by 
a state or local air pollution control agency.'' New York's revised 
Subparts 201-7.1 and 201-7.2 are currently State enforceable. The 
inclusion of these provisions into the SIP will ensure that New York's 
revised Subparts 201-7.1 and 201-7.2 are federally enforceable as well. 
EPA is therefore proposing approval.

B. Subpart 201.5(e)

    As part of New York's May 27, 2005, submittal, New York requested 
that EPA remove existing Subpart 201.5(e) from the federally approved 
SIP. Subpart 201.5(e) concerns excess emissions during maintenance, 
malfunctions, and start-up.
    On September 20, 1999, EPA issued a policy memorandum from Steven 
A. Herman, Assistant Administrator for Enforcement and Compliance 
Assurance, entitled ``State Implementation Plans: Policy Regarding 
Excess Emissions During Malfunctions, Startup, and Shutdown.'' On 
November 8, 2001 and December 5, 2001, EPA issued a memorandum of 
clarification in

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regard to the September 20, 1999, policy memorandum.
    Because excess emissions might aggravate air quality so as to 
prevent attainment or interfere with maintenance of the ambient air 
quality standards, EPA views all excess emissions as violations of the 
applicable emission limitation. Nevertheless, EPA recognizes that 
imposition of a penalty for sudden and unavoidable malfunctions caused 
by circumstances entirely beyond the control of the owner or operator 
may not be appropriate. EPA's 1999 policy memorandum further specifies 
what is allowable and when and in what manner SIP's may provide for 
defenses of violations caused by periods of excess emissions due to 
malfunctions, startup, or shutdown.
    New York's Subpart 201.5(e) was initially incorporated into the SIP 
prior to the issuance of this policy memorandum. EPA has determined 
that New York's Subpart 201.5(e) does not meet the required criteria 
for excusing excess emissions from maintenance, malfunctions or 
startup, as outlined in the 1999 EPA policy memorandum. Therefore, EPA 
agrees with New York's request to remove it from the federally 
enforceable SIP.

III. What Is EPA's Conclusion?

    EPA has evaluated New York's submittal for consistency with the 
Act, EPA regulations, and EPA policy. EPA has determined that the 
revisions made to Part 201.7, ``Federally Enforceable Emission Caps,'' 
specifically the inclusion of Subparts 201-7.1, ``General'' and 201-
7.2, ``Emission Capping Using Synthetic Minor Permits'' meet the SIP 
revision requirements of the Act. In addition, EPA has determined that 
existing Subpart 201.5(e) should no longer be included in the Federally 
approved SIP. Therefore, EPA is proposing to approve revised Subparts 
201-7.1 and 201-7.2 into the Federally approved New York SIP and remove 
existing Subpart 201.5(e) from the federally approved New York SIP.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). This rule proposes to approve pre-existing 
requirements under state law, does not impose any additional 
enforceable duty beyond that required by state law, and 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).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). This action also does not 
have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Act. This proposed rule 
also is not subject to Executive Order 13045 ``Protection of Children 
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Act. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose 
an information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: July 12, 2005.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. 05-14407 Filed 7-20-05; 8:45 am]
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