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###### Environmental Protection Agency

          - 40 CFR Part 52 
          - [Region 2 Docket No. R02-OAR-2004-NY-0001, FRL-7824-9] 

# AGENCY:

Environmental Protection Agency. 

# ACTION:

Proposed rule. 

# SUMMARY:

                        The Environmental Protection Agency (EPA) proposes approval of a request from New York to revise its State Implementation Plan (SIP) for ozone to incorporate revisions to Subpart 227-2 “Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NOX)” of Part 227 “Stationary Combustion Installations” of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6NYCRR). The revision relates to the control of oxides of nitrogen emissions from stationary industrial sources. This SIP revision consists of a control measure needed to meet the shortfall in emissions reduction identified by EPA in New                               ( print page 59840)                            York's one-hour ozone attainment demonstration SIP.                     

The intended effect of this proposed rule is to approve a control strategy which will result in emission reductions that will help achieve attainment of the national ambient air quality standard for ozone required by the Clean Air Act. 

# DATES:

Comments must be received on or before November 5, 2004. 

# ADDRESSES:

Submit your comments, identified by Regional Material in EDocket (RME) ID Number R02-OAR-2004-NY-0001 by one of the following methods: 

                        1. Federal eRulemaking Portal:                         *http://www.regulations.gov.*                         Follow the on-line instructions for submitting comments.                     

                        2. 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.                     

                        3. E-mail:                         *Werner.Raymond@epa.gov.*

4. Fax: (212) 637-3901. 

5. Mail: “RME ID Number R02-OAR-2004-NY-0001”, Raymond Werner, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. 

6. 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. 

*Instructions:*                         Direct your comments to Regional Material in EDocket (RME) ID Number R02-OAR-2004-NY-0001. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at                         *http://docket.epa.gov/​rmepub/​,*                         including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through Regional Material in EDocket (RME), regulations.gov, or e-mail. The EPA RME website and the federal regulations.gov website are “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through RME or regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.                     

*Docket:*                         All documents in the electronic docket are listed in the Regional Material in EDocket (RME) index at                         *http://docket.epa.gov/​rmepub/​.*                         Although listed in the index, some information is not publicly available,                         *i.e.*, CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in RME or in hard copy at the Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. EPA requests that if at all possible, you contact the contact listed in the                         **FOR FURTHER INFORMATION CONTACT**                         section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding Federal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

                        Anthony (Ted) Gardella (                        *Gardella.Anthony@epa.gov*                        ) for specific questions on New York's NOX                         RACT SIP revision or Kirk J. Wieber (                        *Wieber.Kirk@epa.gov*) for specific questions on New York's ozone attainment demonstration; Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3892 or (212) 637-3381, respectively.                     

# SUPPLEMENTARY INFORMATION:

                    The Environmental Protection Agency (EPA) proposes to approve the New York State Department of Environmental Conservation's (New York's) NOX                     RACT State Implementation Plan (SIP) revision. The following table of contents describes the format for this                     **SUPPLEMENTARY INFORMATION**                     section.                 

I. EPA's Proposed Action 

A. What Action Is EPA Proposing Today? 

B. Why Is EPA Proposing This Action? 

                        C. What Are the Clean Air Act Requirements for NOX                         RACT?                     

D. What Are the Clean Air Act Requirements for Attainment of the One-Hour Ozone Standard? 

                        E. When Was New York's Additional NOX                         RACT Requirement Proposed and Adopted?                     

F. What Is EPA's Finding on New York's Submittal? 

II. Conclusion 

III. Statutory and Executive Order Revisions. 

## I. EPA's Proposed Action 

### A. What Action Is EPA Proposing Today? 

                    EPA proposes to approve a revision to New York's ground level ozone State Implementation Plan (SIP) which New York submitted on February 18, 2004. The SIP revision includes amendments to the following two regulations: Subpart 227-2 entitled “Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NOX)” of Part 227 entitled, “Stationary Combustion Installation;” and Subpart 201-3 entitled, “Exemptions and Trivial Activities,” of Part 201 entitled, “Permits and Registration,” all of which are part of Title 6 of the New York Codes of Rules and Regulations. These amended rules were adopted on January 9, 2004. New York submitted the regulations in order to strengthen its one-hour ozone SIP. New York amended Subpart 227-2 for the purpose of reducing additional emissions of NOX                     in response to emission reduction shortfalls identified by EPA (64 FR 70364; December 16, 1999) for attainment of New York's one-hour ozone standard. New York amended Subpart 201-3 to be consistent with amendments to Subpart 227-2. EPA proposes that New York's submittal is fully approvable as a SIP strengthening measure for New York's one-hour ground level ozone SIP and has determined that it meets New York's commitment to adopt a control measure for additional NOX                     reductions to close the shortfall needed to attain the one-hour ozone standard.                 

### B. Why Is EPA Proposing This Action? 

EPA is proposing this action to: 
    - Give the public the opportunity to submit comments on EPA's proposed action, as discussed in the ADDRESSES                      section,                            ( print page 59841)      
    - Approve a control measure which reduces NO X                      emissions, a precursor of ozone formation, to help attain the one-hour national ambient air quality standard (NAAQS) for ozone,                 
    - Fulfill New York's and EPA's requirements under the Clean Air Act (the Act),
    - Make New York's NO X                      RACT regulations federally enforceable and available for emission reduction credit in the SIP.                 

###                     C. What Are the Clean Air Act Requirements for NOX                     RACT?                 

                    The Act requires certain states to develop RACT regulations for major stationary sources of NOX                     and to provide for the implementation of the required measures as soon as practicable but no later than May 31, 1995. Under the Act, the definition of major stationary source is based on the tons per year (tpy) air pollution a source emits and the classification of the air in the area in which the source is located. New York is within the Northeast ozone transport region established by section 184(a) of the Act. In ozone transport regions, attainment/unclassified areas as well as marginal and moderate ozone nonattainment areas, a major stationary source for NOX                     is considered to be one which emits or has the potential to emit 100 tpy or more of NOX                     and is subject to the requirements of a moderate nonattainment area. New York has defined a major stationary source of NOX                     as a source which has the potential to emit 25 tpy in the New York City and lower Orange County metropolitan areas and 100 tpy in the rest of the State. Consequently, all major stationary sources of NOX                     within the State of New York are required to implement RACT no later than May 31, 1995. For detailed information on the Act requirements for NOX                     RACT see the Technical Support Document prepared for today's action.                 

### D. What Are the Clean Air Act Requirements for Attainment of the One-Hour Ozone Standard? 

                    Section 182 of the Act specifies the required SIP submissions and requirements for areas classified as nonattainment for ozone and when these submissions and requirements are to be submitted to EPA by the states. The specific requirements vary depending upon the severity of the ozone problem. The New York—Northern New Jersey—Long Island area is classified as a severe ozone nonattainment area. Under section 182, severe ozone nonattainment areas were required to submit demonstrations of how they would attain the one-hour ozone NAAQS. EPA approved New York's attainment demonstration on February 4, 2002 (67 FR 5170) based on New York adopting additional volatile organic compound (VOC) and NOX                     emission reductions. This proposal addresses the NOX                     reductions to which New York committed. Moreover, the emission reduction provided by this control measure will also be necessary for attainment of the 8-hour ozone NAAQS.                 

                    In a related matter, the Ozone Transport Commission (OTC) developed potential control measures into model rules for a number of source categories and estimated emission reduction benefits from implementing these model rules. These model rules were designed for use by states in developing their own regulations to achieve additional emission reductions to close emission shortfalls. New York used the OTC model rule for additional NOX                     reductions as the basis for the regulations which EPA is acting upon in this proposal.                

###                     E. When Was New York's Additional NOX                     RACT Requirement Proposed and Adopted?                 

                    New York's additional NO*X*                     RACT requirements were proposed on July 16, 2003 and the State accepted written comments until the end of the public comment period on September 12, 2003. New York held public hearings on the proposed amendments on August 19, 21 and 23, 2003. The State adopted the amended NOX                     RACT requirements on January 9, 2004. New York's SIP revision was submitted to EPA on February 18, 2004. On May 13, 2004 EPA determined the submittal to be administratively and technically complete.                 

### F. What Is EPA's Finding on New York's Submittal? 

                    The following is a summary of EPA's finding of New York's February 18, 2004 SIP submittal consisting of revisions to Subparts 227-2 and 201-3. These revisions go beyond the Act requirements for RACT at facilities that emit NOX                    . New York previously submitted SIP revisions which addressed the NOX                     RACT requirements and for which EPA approved as SIP revisions on April 28, 2000 (65 FR 24875). The State also developed a NOX                     Budget Trading Program (Part 204) which EPA approved on May 22, 2001 (66 FR 28059).                 

                    New York revised Subpart 227-2 to further reduce emissions of NOX                     in three principal ways. First, New York revised Subpart 227-2 by lowering the presumptive NOX                     emission limits for stationary internal combustion engines (IC Engines). The new NOX                     emission limits, expressed as grams NOX                     per brake horsepower hour, range from 1.5 to 2.3 depending upon the type IC Engine and the fuel combusted which will result in additional NOX                     reductions ranging from 25 percent to approximately 78 percent. Secondly, New York revised Subpart 227-2 by lowering the applicability from 225 horsepower to 200 horsepower for IC Engines which not only are located in the severe one-hour ozone nonattainment area but also provide primary power or are used in peak shaving generation. In New York State, the severe one-hour ozone nonattainment area includes the New York City metropolitan area and the lower Orange County metropolitan area. For the remainder of the State, the applicability for IC Engines remains unchanged at 400 horsepower. Third, owners or operators of IC Engines have the option of complying either by meeting the new presumptive NOX                     emission limits or by meeting an emission limit which reflects at least 90 percent NOX                     reduction from its 1990 baseline emissions, if available. Affected sources must be in compliance with the new Subpart 227-2 requirements by April 1, 2005. The amendments to Subpart 227-2 do not include any new emission limit requirements for source categories other than IC Engines.                 

The provision at section 227-2.5(c) allows an owner or operator of a source subject to this rule who can adequately demonstrate to New York that the new emission limits are not technically or economically feasible, even through fuel switching, selective catalytic reduction (SCR) or system wide averaging, to apply for a less stringent case-by-case RACT emission limit. The requirement to consider SCR technology is a new criteria added to this provision. This provision is also available to owners or operators of newly regulated IC Engines. Any alternative RACT emission limit must be approved by New York and submitted to EPA as a SIP revision in accordance with the SIP approved compliance option at section 227-2.5(c) of Subpart 227-2. 

                    In addition, New York revised Subpart 227-2 to require owners or operators of affected IC Engines and any source that previously received a case-by-case alternative RACT emission limit pursuant to section 227-2.5(c) to submit to New York either a permit application or a permit modification which includes updated versions of compliance and operating plans. Owners or operators must comply with this new requirement by July 1, 2004.                           ( print page 59842)    

                    New York made the following additional revisions to Subpart 227-2: deletion, throughout Subpart 227-2, of the NOX                     RACT compliance date requirement of May 31, 1995; revisions to section 227-2.3 [previously entitled “Compliance plan and deadlines”] including deletion of compliance milestone dates for certain compliance plan and permitting requirements; and revisions to section 227-2.6(b) for certain sources required to submit Continuous Emission Monitoring System (CEMS) compliance plans by May 31, 1995. These revisions remove intermediate compliance steps whose effective dates have passed and the final compliance date which has also passed. The revisions do not affect the applicable requirements and are not a relaxation of SIP requirements. The deletion of the previous rule's effective date in no way relieves any source who was required to comply by that effective date. Should it become necessary to enforce against an owner or operator of sources that were required to be in compliance with any NOX                     RACT provision, pursuant to its authority under the Act, and the SIP in effect at the time of the violation, EPA will use the May 31, 1995 compliance date in the SIP approved version of Subpart 227-2 (66 FR 28059; May 22, 2001), or in the SIP as approved by this action, whichever is deemed appropriate.                 

New York revised Subpart 201-3 for the purpose of regulatory consistency with the new revisions to Subpart 227-2. New York revised Subpart 201-3 to exempt the following sources from permitting requirements at non-title V permitting facilities, however these sources must now be included in title V permitting applications: (1) Diesel or natural gas powered IC Engines, located within the severe one-hour ozone nonattainment area, which have applicability limits lowered from 225 brake horsepower to 200 brake horsepower; and (2) emergency power generating IC Engines and engine test cells at engine manufacturing facilities which are utilized for research and development, reliability performance testing, or quality assurance performance testing. It should be noted that there is a minor discrepancy in terminology used in Subparts 227-2 and 201-3 when referring to the engine size applicability limit (“horsepower” vs “brake horsepower” respectively). Therefore, EPA recommends that, at its next opportunity, New York clarify this discrepancy by revising Subpart 227-2 by changing the engine size applicability term “horsepower” to the term “brake horsepower (bhp)” so that it is consistent with the term used in the exemption section of Subpart 201-3. For additional details the reader is referred to the Technical Support Document prepared for today's action. 

                    EPA expects that the revisions to Subpart 227-2 will result in additional reductions of NOX                     emissions to help New York meet the emission reduction shortfall and attain the one-hour ozone standard. New York has stated to EPA that once all six control measures have been adopted, it will update the projection inventories of NOX                     and VOC emissions to establish an accurate estimate of the emission reductions. New York will release the revised projection inventories for public comment and submit them to EPA for approval.                 

                    EPA has evaluated New York's NOX                     RACT SIP submittal and proposes to find it approvable. The February 18, 2004 SIP submittal will strengthen New York's SIP for reducing ground level ozone by providing additional NOX                     reductions beginning on April 1, 2005.                 

                    EPA completed a detailed analysis and evaluation to determine the approvability of New York's February 18, 2004 SIP revision. EPA's evaluation of the RACT submittal is detailed in a document entitled “Technical Support Document-NOX                     RACT SIP Revision-State of New York.” A copy of that document is available, upon request, from the EPA Regional Office listed in the                     **ADDRESSES**                     section of this document or the Technical Support Document can be viewed at                     *http://docket.epa.gov/​rmepub/​*.                 

## II. What Is EPA's Conclusion? 

                    EPA has evaluated New York's submittal for consistency with the Act, EPA regulations, and EPA policy. The proposed new control measures will strengthen the SIP by providing additional NOX                     emission reductions. Accordingly, EPA is proposing to approve the revision to Subpart 227-2, as adopted on January 9, 2004, into New York's ozone SIP. At a later date, EPA will act on Subpart 201-3, as adopted by New York on January 9, 2004.                 

In revising Subpart 227-2, New York deleted the final compliance date applicable to sources because the date had passed, and sources are now expected to be in compliance. EPA believes that the deletion made it less clear to sources obligated to comply with the May 31, 1995 compliance date in the Statute and in the previously approved SIP that they are obliged to have complied by that date. However, deletion of the date does not eliminate the effective date from the prior SIP approved rule or from the Statute and thus does not impact on the State and EPA's authority to enforce. In the event EPA needs to take enforcement action, it will base penalties for noncompliance on the final compliance date in effect at the time of the violation. 

## III. 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.*). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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,                           ( print page 59843)                        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
      - Nitrogen Dioxides
      - Ozone
      - Reporting and recordkeeping requirements
      - Volatile organic compounds

Authority:42 U.S.C. 7401-7671q. 

Dated: September 28, 2004. 

Kathleen C. Callahan, 

Acting Regional Administrator, Region 2. 

[FR Doc. 04-22484 Filed 10-5-04; 8:45 am] 

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