[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Rules and Regulations]
[Pages 70140-70143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28964]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2010-0321, FRL-9212-1]
Approval and Promulgation of Implementation Plans; New York
Prevention of Significant Deterioration of Air Quality and
Nonattainment New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to grant a partial approval to revisions of the New York State
Implementation Plan (SIP) submitted by the New York State Department of
Environmental Conservation on March 3, 2009. As a result of this
action, New York will implement its own Prevention of Significant
Deterioration of Air Quality (PSD) and Nonattainment New Source Review
(NNSR) State regulations. These revisions create a new New York State
PSD regulation program and modify the existing New York State NNSR
regulations in the SIP. These revisions also address changes mandated
by the revised Federal New Source Review (NSR) regulations, referred to
as the ``2002 NSR Reform Rules.''
In this action, EPA is taking final action to approve these
revisions by issuing a partial approval, with the caveat that EPA is
taking no action at this time on the PSD permitting threshold
provisions to the extent that those provisions may require permits for
sources of greenhouse gas (GHG) emissions that equal or exceed the 100/
250 tons per year (tpy) GHG levels but are less than the thresholds
identified in EPA's final Tailoring Rule; and the PSD significance
level provisions of New York's rule to the extent that those provisions
may treat as significant GHG emissions increases that are less than the
thresholds identified in the final Tailoring Rule. The PSD
applicability thresholds below the Tailoring Rule will be acted on, as
necessary, as part of an EPA national rulemaking or in a separate EPA
Region 2 rulemaking.
DATES: Effective Date: This rule is effective on December 17, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R02-OAR-2010-0321. All documents in the docket are listed on
the http://www.regulations.gov Web site. All docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at
[[Page 70141]]
the Environmental Protection Agency, Region 2 Office, Air Programs
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The Docket telephone number is 212-
637-4249.
FOR FURTHER INFORMATION CONTACT: Frank Jon, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-4085; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, references to
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the
Environmental Protection Agency. The supplementary information is
arranged as follows:
I. What is being addressed by this document?
II. What sections of New York's rules are we approving in this
action?
III. What are EPA's responses to comments to EPA's proposal?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews
I. What is being addressed by this document?
On March 3, 2009, the State of New York, through the New York State
Department of Environmental Conservation (NYSDEC), submitted to EPA
Region 2 revisions to the New York State Implementation Plan (SIP). The
submittal consists of revisions to three regulations that are already
part of the New York SIP. The affected regulations are: 6 New York Code
of Rules and Regulations (NYCRR) Part 231, New Source Review for New
and Modified Facilities; 6 NYCRR Part 200, General Provisions; and 6
NYCRR Part 201, Permits and Certificates. The revisions were made to
create a new New York State PSD regulation program and to update the
existing New York State nonattainment regulations consistent with
changes to the Federal NSR regulations published on December 31, 2002
(67 FR 80186). In today's action, EPA is taking final action to approve
those revisions by issuing a partial approval, as proposed (see 75 FR
43892 (July 27, 2010)), with the caveat that EPA is taking no action at
this time on (1) the PSD permitting threshold provisions to the extent
that those provisions may require permits for sources of greenhouse gas
(GHG) emissions that equal or exceed the 100/250 tons per year (tpy)
GHG levels but are less than the thresholds identified in EPA's final
Tailoring Rule at 75 FR 31514, 31606 (June 3, 2010); and (2) the PSD
significance level provisions of New York's rule to the extent that
those provisions may treat as significant GHG emissions increases that
are less than the thresholds identified in the final Tailoring Rule.
Id. We are taking this action, in part, because in its August 11, 2010
letter to EPA, New York State confirmed to us that they have authority
to regulate greenhouse gases without any additional rulemaking or other
administrative action. For PSD applicability thresholds below the
Tailoring Rule, EPA is still reviewing New York's ability to limit the
permitting to sources equal to and above the Tailoring Rule thresholds.
Action on this issue will be forthcoming, as necessary, as part of an
EPA national action or in a separate EPA Region 2 action.
II. What sections of New York's rules are we approving in this action?
With respect to 6 NYCRR Part 200, EPA is taking final action to
approve into the New York SIP only sections 200.1 and 200.9, Table 1
(Part 231 references), as effective March 5, 2009. EPA is not taking
final action on the revisions to section 200.10 since they include only
references to Federal standards and requirements and are therefore
already Federally enforceable standards and requirements.
With respect to 6 NYCRR Part 201, EPA is taking final action to
approve into the New York SIP only those revisions to subpart 201-2,
effective March 5, 2009, submitted by NYSDEC specifically for
implementation of the Part 231 NSR permitting program. Specifically,
EPA is approving the definition of ``Major stationary source or major
source or major facility'' that is contained in subpart 201-2.1(b)(21).
With respect to 6 NYCRR Part 231, EPA is taking final action to
approve all of Part 231 into the New York SIP except certain revisions
to Part 231 that may be applicable to GHG emissions, effective March 5,
2009, specifically, (1) the PSD permitting threshold provisions to the
extent that those provisions may require permits for sources of
greenhouse gas (GHG) emissions that equal or exceed the 100/250 tons
per year (tpy) GHG levels but are less than the thresholds identified
in EPA's final Tailoring Rule at 75 FR 31514, 31606 (June 3, 2010); and
(2) the PSD significance level provisions of New York's rule to the
extent that those provisions may treat as significant GHG emissions
increases that are less than the thresholds identified in the final
Tailoring Rule. Note that by this final action, EPA is removing and
reserving 40 CFR 52.1689 which had incorporated the Federal PSD
regulations at 40 CFR 52.21 into New York's applicable implementation
plan.
III. What are EPA's responses to comments to EPA's proposal?
EPA received only one comment on this proposal. The commenter
congratulates the agency on the policy decision it has made. The
commenter also states that when EPA promulgated the NSR Reform Rule, it
indicated that it would not approve State plans that did not include
the ``reforms,'' and stated that it would issue a Federal
Implementation Plan imposing the reforms on any State that did not
adopt them. By contrast, the commenter notes that the proposed rule
would approve New York's program, even though it diverges in important
respects from the NSR Reform package. The commenter further notes that
EPA does so on the grounds that the New York program is more stringent
than Federal requirements. The commenter indicates that this is quite a
change from the position of the previous Administration. The commenter
further states that he does not know if EPA has previously taken the
position it does here. If not, the commenter urges EPA to provide
discussion of the rationales for this change in stance. Otherwise, the
commenter warns, the change might well be struck down by the courts as
unexplained, and therefore arbitrary and capricious.
Response
Except in specific cases of preemption unrelated to this action,
the Clean Air Act does not preclude States from adopting or enforcing a
more stringent regulation than Federal requirements. 42 U.S.C. 7416.
New York State has adopted the reforms of EPA's 2002 NSR reform rules.
In general, the New York State revisions to the rule are similar to the
Federal NSR Reform Rules except for a few specific provisions. EPA is
required to approve State SIP revisions that are at least as stringent
as the Federal rules even if they contain provisions that differ in
minor ways. These specific provisions, addressed in New York's Revised
Regulatory Impact Statement and discussed in detail in our proposal
(see 75 FR 43892, (July 27, 2010), retain and, in fact, may exceed the
environmental benefits of the NSR program.
IV. What action is EPA taking?
EPA is taking a final action to grant a partial approval to
revisions to the New York State Implementation Plan (SIP) submitted by
the New York State Department of Environmental Conservation on March 3,
2009.
[[Page 70142]]
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by January 18, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 29, 2010.
George Pavlou,
Acting Regional Administrator, Region 2.
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Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
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1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
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2. Section 52.1670 is amended by adding new paragraph (c)(115) to read
as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(c) * * *
* * * * *
(115) On March 3, 2009, the New York State Department of
Environmental Conservation (NYSDEC), submitted to EPA proposed
revisions to the State Implementation Plan concerning Prevention of
Significant Deterioration (PSD) and nonattainment new source review.
(i) Incorporation by reference:
(A) Letter dated March 3, 2009, from Assistant Commissioner J.
Jared Snyder, NYSDEC, to George Pavlou, Acting Regional Administrator,
EPA Region 2, submitting the revisions for Title 6 of the New York Code
of Rules and Regulations, Part 200, ``General Provisions,'' sections
200.1 and 200.9, Table 1 (Part 231 references); Subpart 201-2.1(b)(21);
and Part 231, which identifies an effective date of March 5, 2009.
(B) Title 6 of the New York Code of Rules and Regulations, Part
200, ``General Provisions,'' sections 200.1 and 200.9, Table 1 (Part
231 references), with an effective date of March 5, 2009, Subpart 201-
2.1(b)(21), definition of ``Major stationary source or major source or
major facility,'' with an effective date of March 5, 2009, and Part
231, ``New Source Review for New and Modified Facilities,'' with an
effective date of March 5, 2009.
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3. Section 52.1679, is amended by revising the table entries under
Title 6, for Part 200 and Part 231, and adding new entry Subpart 201-
2.1(b)(21) following Part 201, ``Permits and certificates'' in
numerical order to read as follows:
Sec. 52.1679 EPA-approved New York State regulations.
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State effective
New York State regulation date Latest EPA approval date Comments
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Title 6
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Part 200, General Provisions, Section 3/5/09 11/17/10, [Insert FR The word odor is removed from
200.1. page citation]. the Subpart 200.1(d)
definition of ``air
contaminant or air
pollutant.''
[[Page 70143]]
............... Redesignation of non-
attainment areas to
attainment areas (200.1(av))
does not relieve a source
from compliance with
previously applicable
requirements as per letter
of Nov. 13, 1981 from H.
Hovey, NYSDEC.
............... Changes in definitions are
acceptable to EPA unless a
previously approved
definition is necessary for
implementation of an
existing SIP regulation.
............... EPA is including the
definition of ``Federally
enforceable'' with the
understanding that (1) the
definition applies to
provisions of a Title V
permit that are correctly
identified as Federally
enforceable, and (2) a
source accepts operating
limits and conditions to
lower its potential to emit
to become a minor source,
not to ``avoid'' applicable
requirements.
Section 200.9, Table 1 (Part 231 3/5/09 11/17/10, [Insert FR EPA is approving reference
references). page citation]. documents that are not
already Federally
enforceable.
Sections 200.6, 200.7 and 200.9....... 2/25/00 4/22/08, 73 FR 21548.... EPA is approving reference
documents that are not
already Federally
enforceable.
* * * * * * *
Subpart 201-2.1(b)(21), Definitions... 3/5/09 11/17/10, [Insert FR EPA is including the
page citation]. definition of ``Major
stationary source or major
source or major facility''
with the understanding that
the definition applies only
to provisions of Part 231.
* * * * * * *
Part 231, New Source Review for New 3/5/09 11/17/10, [Insert FR Partial approval; no action
and Modified Facilities. page citation]. taken on provisions that may
require PSD permits for
sources of greenhouse gas
(GHG) emissions with
emissions below the
thresholds identified in
EPA's final PSD and Title V
GHG Tailoring Rule at 75 FR
31514, 31606 (June 3, 2010).
* * * * * * *
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Sec. 52.1689 [Reserved]
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4. Section 52.1689 is removed and reserved.
[FR Doc. 2010-28964 Filed 11-16-10; 8:45 am]
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