21302 Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 / Proposed Rules 

• 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: April 1, 2013. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2013–08238 Filed 4–9–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2013–0180, FRL–9800–3] 

Approval and Promulgation of 

Implementation Plans; New York State 

Ozone Implementation Plan Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

revision to the New York State 

Implementation Plan (SIP) for ozone 

concerning the control of oxides of 

nitrogen. The proposed SIP revision 

consists of amendments to Title 6 of the 

New York Codes, Rules and Regulations 

Part 200, ‘‘General Provisions,’’ Part 

212, ‘‘General Process Emission 

Sources,’’ Part 220, ‘‘Portland Cement 

Plants and Glass Plants,’’ and Subpart 

227–2, ‘‘Reasonably Available Control 

Technology (RACT) For Major Facilities 

of Oxides of Nitrogen (NOx).’’ The 

intended effect of this action is to 

approve control strategies, required by 

the Clean Air Act, which will result in 

emission reductions that will help attain 

and maintain the national ambient air 

quality standards for ozone. 

DATES: Comments must be received on 

or before May 10, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket Number EPA–R02– 

OAR–2013–0180, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: Ruvo.Richard@epa.gov. 

• Fax: 212–637–3901. 

• Mail: Richard Ruvo, Acting Chief, 

Air Programs Branch, Environmental 

Protection Agency, Region 2 Office, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866. 

• Hand Delivery: Richard Ruvo, 

acting 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 

Docket No. EPA–R02–OAR–2013–0180. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, 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 www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

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 email 

comment directly to EPA without going 

through www.regulations.gov your email 

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 or any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 2 Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. EPA requests, if 

at all possible, that you contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section to view 

the hard copy of the docket. You may 

view the hard copy of the docket 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: Kirk 

J. Wieber (wieber.kirk@epa.gov), Air 

Programs Branch, Environmental 

Protection Agency, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866, (212) 637–3381. 

SUPPLEMENTARY INFORMATION: 

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Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 / Proposed Rules 21303 

1On December 22, 2006, the United States Court 

of Appeals for the District of Columbia Circuit (the 

Court) vacated the Phase 1 Rule. South Coast Air 

Quality Management Dist. v. EPA, 472 F.3d 882 

(D.C. Cir. 2006). Subsequently, in South Coast Air 

Quality Management Dist. v. EPA, 489 F.3d 1295 

(D.C. Cir. 2007), in response to several petitions for 

rehearing, the Court clarified that the Phase 1 Rule 

was vacated only with regard to those parts of the 

rule that had been successfully challenged. The 

court upheld the portions of the Phase 1 Rule 

relating to EPA’s classification system under 

subpart 2. The portions of the rule that were 

vacated do not affect this proposed action. 

Table of Contents 

I. What is required by the Clean Air Act (Act) 

and how does it apply to New York? 

A. What is the history and time frame for 

State Implementation Plan (SIP) 

submissions? 

B. What are the moderate area 

requirements? 

II. What was included in New York’s 

submittals? 

III. What is EPA’s evaluation of Part 212, 

‘‘General Process Emission Sources’’? 

A. Background 

B. What are the new requirements of Part 

212? 

C. What is EPA’s evaluation? 

IV. What is EPA’s evaluation of Part 220, 

‘‘Portland Cement Plants and Glass 

Plants’’? 

A. Background 

B. What are the new requirements of Part 

220? 

C. What is EPA’s evaluation? 

V. What is EPA’s evaluation of Part 227–2, 

‘‘Reasonably Available Control 

Technology (RACT) for Major Facilities 

of Oxides of Nitrogen (NOX)’’? 

A. Background 

B. What are the new requirements of Part 

227–2? 

C. What is EPA’s evaluation? 

VI. What other revisions did New York 

make? 

VII. What is EPA’s conclusion? 

VIII. What are the consequences if a final 

conditional approval is converted to a 

disapproval? 

IX. Statutory and Executive Order Reviews 

I. What is required by the Clean Air Act 

(Act) and how does it apply to New 

York? 

A. What is the history and time frame 

for State Implementation Plan (SIP) 

submissions? 

In 1997, EPA revised the health-based 

national ambient air quality standards 

(NAAQS or standard) for ozone, setting 

it at 0.08 parts per million averaged over 

an 8-hour period. EPA set the 8-hour 

ozone standard based on scientific 

evidence demonstrating that ozone 

causes adverse health effects at lower 

ozone concentrations and over longer 

periods of time than was understood 

when the pre-existing 1-hour ozone 

standard was set. EPA determined that 

the 8-hour standard would be more 

protective of human health, especially 

with regard to children and adults who 

are active outdoors, and individuals 

with a pre-existing respiratory disease, 

such as asthma. On April 30, 2004 (69 

FR 23858), EPA finalized its attainment/ 

nonattainment designations for areas 

across the country with respect to the 8- 

hour ozone standard. These actions 

became effective on June 15, 2004. The 

three 8-hour ozone moderate 

nonattainment areas located in New 

York State are: the New York-Northern 

New Jersey-Long Island, NY-NJ-CT 

nonattainment area; the Poughkeepsie 

nonattainment area; and the Jefferson 

County nonattainment area. The New 

York portion of the New York-Northern 

New Jersey-Long Island, NY-NJ-CT 

nonattainment area is composed of the 

five boroughs of New York City and the 

surrounding counties of Nassau, 

Suffolk, Westchester and Rockland. This 

is collectively referred to as the New 

York City Metropolitan Area or NYMA. 

The Poughkeepsie nonattainment area is 

composed of Dutchess, Orange and 

Putnam counties. 

The April 30, 2004 designations 

triggered the Act’s requirements under 

section 182(b) for moderate 

nonattainment areas, including a 

requirement to submit a demonstration 

of attainment. EPA notes that on 

December 7, 2009 (74 FR 63993), EPA 

determined that the Poughkeepsie area 

attained the 8-hour ozone standard and 

on March 25, 2008 (73 FR 15672) EPA 

determined that Jefferson County 

attained the 8-hour ozone standard. On 

June 18, 2012 (77 FR 36163) EPA 

determined that the New York City 

Metropolitan Area attained the 8-hour 

ozone standard. 

B. What are the moderate area 

requirements? 

To assist states in meeting the Act’s 

requirements for ozone, EPA released an 

8-hour ozone implementation rule in 

two phases. EPA’s Phase 1 8-hour ozone 

implementation rule, published on 

April 30, 2004 (69 FR 23951) and 

referred to as the Phase 1 Rule, specifies 

that states must submit these attainment 

demonstrations to EPA by no later than 

three years from the effective date of 

designation—that is, submit them by 

June 15, 2007.1

On November 29, 2005, EPA 

published Phase 2 of the 8-hour ozone 

implementation rule (70 FR 71612), 

referred to as the Phase 2 Rule, which 

addressed the control and state plan 

obligations that apply to areas 

designated nonattainment for the 8-hour 

NAAQS. Among other things, the Phase 

1 and Phase 2 Rules outline the SIP 

requirements and deadlines for various 

requirements in areas designated as 

moderate nonattainment. For such 

areas, reasonably available control 

technology (RACT) plans were due by 

September 2006 (40 CFR 51.912(a)(2)). 

Both the Phase 1 and Phase 2 rules 

require that modeling and attainment 

demonstrations, reasonable further 

progress plans, reasonably available 

control measure (RACM) analysis, 

projection year emission inventories, 

motor vehicle emissions budgets and 

contingency measures were all due by 

June 15, 2007 (40 CFR 51.908(a)). 

On July 23, 2010 (75 FR 43066), EPA 

conditionally approved New York’s 

statewide RACT and RACM SIP 

revision. EPA conditionally approved 

the RACT and RACM analyses for the 

1997 8-hour ozone NAAQS based on 

New York’s commitment to submit 

adopted RACT/RACM rules for several 

source categories by August 31, 2010. 

On May 28, 2010 (75 FR 29897) and 

March 8, 2012 (77 FR 13974), EPA 

approved five New York VOC RACT/ 

RACM rules that New York committed 

to adopt pursuant to EPA’s July 23, 2010 

conditional approval. The three NOX

RACT rules that are the subject of this 

proposed action are the only remaining 

rules pursuant to EPA’s July 23, 2010 

conditional approval and New York’s 

commitment to adopt additional RACT/ 

RACM rules. 

II. What was included in New York’s 

submittals? 

On August 19, 2010 and December 15, 

2010, the New York State Department of 

Environmental Conservation (NYSDEC), 

submitted to EPA proposed revisions to 

the SIP, which included State adopted 

revisions to four regulations contained 

in Title 6 of the New York Code of Rules 

and Regulations (6 NYCRR) Part 200, 

‘‘General Provisions,’’ Part 212, 

‘‘General Process Emission Sources,’’ 

Part 220, ‘‘Portland Cement Plants and 

Glass Plants,’’ and Part 227–2, 

‘‘Reasonably Available Control 

Technology (RACT) For Major Facilities 

of Oxides of Nitrogen (NOX),’’ with 

effective dates of September 30, 2010, 

July 11, 2010 and July 8, 2010, 

respectively. These revisions are 

applicable statewide and will therefore 

provide oxides of nitrogen (NOX) 

emission reductions statewide and will 

address, in part, attainment of the 1997 

8-hour ozone standard in the NYMA 

and the RACT and RACM requirements. 

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21304 Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 / Proposed Rules 

2As defined in Subpart 212.1, ‘‘A burner 

designed to reduce flame turbulence by the mixing 

of fuel and air and by establishing fuel-rich zones 

for initial combustion, thereby reducing the 

formation of nitrogen oxides.’’ 

III. What is EPA’s evaluation of Part 

212, ‘‘General Process Emission 

Sources’’? 

A. Background 

The NYSDEC revised 6 NYCRR Part 

212, by adding section 212.12, ‘‘Hot mix 

asphalt production plants,’’ to include 

control requirements for hot mix asphalt 

production plants. These control 

requirements will be specifically aimed 

at reducing NOX emissions resulting 

from combustion during the aggregate 

drying and heating process. 

With the exception of section 212.12, 

NOX requirements under Part 212 affect 

only major facilities. Major facilities or 

major sources are those that have a 

potential to emit NOX emissions in 

excess of 100 tons/yr (upstate) and 25 

tons/yr (downstate or in the NYMA.) 

Most, if not all, hot mix asphalt plants 

in New York State are minor sources. 

These new requirements will therefore 

be targeted primarily at minor sources. 

Approximately 200 hot mix asphalt 

production plants exist throughout the 

State, though not all are currently in 

service. While some asphalt production 

plants have consolidated under 

common ownership, many of these 

could be considered small businesses. 

On February 28, 2013, New York 

submitted a letter to EPA certifying that 

there are no ‘‘major source’’ asphalt 

production plants located in New York 

State. 

B. What are the new requirements of 

Part 212? 

The new compliance requirements 

under section 212.12 apply uniformly 

statewide. Under the proposed 

requirements, owners and operators of 

hot mix asphalt production plants must 

comply with NOX reduction practices 

and the possible application of low NOX

burner control technology. Annual 

burner tune-ups will be required in 

order to increase the efficiency of the 

dryer burner. Plants will also be 

required to implement methods of 

reducing the moisture content in their 

aggregate stockpiles, which will result 

in less drying time and therefore will 

require less fuel to be burned and less 

NOX emissions. 

The owners or operators of plants will 

also be required to analyze the 

economic feasibility of installing a low 

NOX burner 2 when their current burner 

is due to be replaced (though no later 

than 2020). In instances where it proves 

feasible, the installation of a low NOX

burner will be required. The cost 

effectiveness calculation contained in 

New York’s ‘‘Air Guide 20 Economic 

and Technical Analysis for Reasonably 

Available Control Technology’’ will be 

utilized, with a threshold that 

represents the dollar per ton value of 

RACT at the time the analysis is done, 

in order to determine economic 

feasibility. 

C. What is EPA’s evaluation? 

NOX Emission Control Requirements 

and Compliance Dates 

Section 212.12 requires facilities to do 

the following for reducing NOX

emissions; (1) Perform a tune-up on the 

dryer burner on an annual basis, (2) 

submit a plan which details the 

introduction or continuation of methods 

by which to reduce the moisture content 

of the aggregate stockpile(s), and (3) 

analyze the economic feasibility of 

installing a low NOX burner when it 

comes time for their current burner to be 

replaced. New York requires that ‘‘Air 

Guide 20 Economic and Technical 

Analysis for Reasonably Available 

Control Technology’’ will be utilized, 

with a threshold that represents the 

dollar per ton value of RACT at the time 

the analysis is done, in order to 

determine economic feasibility. 

New York amended Part 212 by 

including new provisions applicable to 

asphalt production plants that will 

result in additional reductions in NOX

emissions. Emission reductions required 

by sections 182(b)(2) and 172(c)(1) of 

the Act that are used to fulfill in the 

1997 ozone SIP, are required for all 

existing ‘‘major sources,’’ see section 

182(b)(1)(A)(ii)(II) of the Act. As 

discussed previously, New York’s 

section 212.12 applies to hot mix 

asphalt production plants, most which 

are minor sources. As noted in New 

York’s February 28, 2013 letter, there 

are no existing major sources of hot mix 

asphalt production. Therefore, EPA 

proposes to determine the emission 

reductions resulting from section 212.12 

represent additional reductions in NOX

emissions towards attaining and 

maintaining the ozone standard. 

Part 212 contains the required 

elements for a federally enforceable 

rule: emission control requirements, 

compliance procedures and test 

methods, compliance dates and record 

keeping provisions. Therefore, EPA is 

proposing to approve the revisions to 

Part 212. 

IV. What is EPA’s evaluation of Part 

220, ‘‘Portland Cement Plants and Glass 

Plants’’? 

A. Background 

The NYSDEC revised 6 NYCRR Part 

220, which is divided into two subparts: 

220–1 for portland cement plants; and 

220–2 for glass manufacturing plants. In 

addition to other requirements, the 

existing regulation imposed RACT 

requirements on NOX emissions from 

portland cement kilns. The NYSDEC 

revised Part 220 to require updated NOX

RACT for cement kilns at portland 

cement plants, and to require NOX

RACT for glass furnaces at glass plants. 

The revisions will apply statewide to 

major facilities only. Major facilities are 

those that have a potential to emit NOX

emissions that exceed 100 tons/yr 

(upstate) and 25 tons/yr (downstate). 

The NYSDEC is taking a RACT 

approach that requires a facility specific 

analysis. The plant owner or operator 

will be required to perform a facility 

specific RACT analysis for emissions of 

NOX that includes proposed NOX RACT 

emission limit(s), identifies the 

procedures and monitoring equipment 

to be used to demonstrate compliance 

with the proposed NOX RACT emission 

limit(s), and includes a schedule for 

equipment installation. The RACT 

analysis will be submitted to the 

NYSDEC for review and approval and 

subsequently submitted to EPA as a 

proposed revision to the SIP. 

B. What are the new requirements of 

Part 220? 

The revised Subpart 220–1 revisions 

include the removal of a definition, the 

addition of several new definitions, and 

revisions to the RACT requirements for 

NOX emissions. Section 220.1 will 

become section 220–1.1 and will be 

revised to remove the definition of 

‘‘RACT’’ and ‘‘Upset Condition.’’ Also, 

the revisions will add definitions for 

clinker, portland cement kiln, and 

portland cement plant. Sections 220.2 

through 220.5 will become sections 

220–1.2 through 220–1.5. These sections 

contain existing requirements for 

particulate emissions from existing, 

new, and modified kilns and clinker 

coolers, opacity limits for portland 

cement processes, and particulate 

emissions from dust dumps. 

Section 220.6 will become section 

220–1.6 and the existing NOX RACT 

requirements will be replaced with new 

NOX RACT requirements. The revisions 

require a portland cement kiln owner or 

operator to perform a facility specific 

RACT analysis for emissions of NOX

from the kiln that includes proposed 

RACT emission limit(s), identifies the 

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Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 / Proposed Rules 21305 

procedures and monitoring equipment 

to be used to demonstrate compliance 

with the proposed RACT emission 

limit(s), and includes a schedule for 

equipment installation. The RACT 

analysis was to be submitted to the 

NYSDEC by December 1, 2010. RACT, 

as approved by the NYSDEC, must be 

implemented by July 1, 2012. Approved 

RACT determinations will be submitted 

by the NYSDEC to the EPA for approval 

as separate SIP revisions. The proposed 

revisions include a kiln shut down 

option. The owner or operator of a 

portland cement kiln may opt to comply 

with the RACT requirements by shutting 

down the kiln. An owner or operator 

choosing this option shall submit an 

application for a federally enforceable 

permit modification by December 1, 

2010 wherein the owner or operator 

commits to permanently shut down the 

furnace by July 1, 2012. 

Section 220.8 will become section 

220–1.7 and will be revised to require 

NOX emissions from portland cement 

kilns to be continuously monitored. The 

proposed revisions include specific 

continuous emissions monitoring, 

reporting, and recordkeeping 

requirements. 

Proposed Subpart 220–2 is new. This 

subpart will require NOX RACT for glass 

furnaces at glass plants. The 

requirements of this Subpart apply to 

any glass plant that is a major facility of 

NOX emissions. Definitions of glass 

melting furnace, glass plants, and glass 

produced or glass production are 

included in section 220–2.2. 

Section 220–2.3 contains the NOX

RACT requirements. The revisions 

require a glass melting furnace owner or 

operator to perform a facility specific 

RACT analysis for emissions of NOX

from the furnace that includes proposed 

RACT emission limit(s), identifies the 

procedures and monitoring equipment 

to be used to demonstrate compliance 

with the RACT emission limit(s), and 

includes a schedule for equipment 

installation. The RACT analysis will be 

submitted to the NYSDEC by December 

1, 2010. RACT, as approved by the 

NYSDEC, must be implemented by July 

1, 2012. Approved RACT 

determinations will be submitted by the 

NYSDEC to the EPA for approval as 

separate SIP revisions. The proposed 

revisions include a glass melting 

furnace shut down option. The owner or 

operator of a glass melting furnace may 

opt to comply with the RACT 

requirements by shutting down the 

furnace. An owner or operator choosing 

this option shall submit an application 

for a federally enforceable permit 

modification by December 1, 2010 

wherein the owner or operator commits 

to permanently shut down the furnace 

by July 1, 2012. 

The section 220–2.4 revisions require 

NOX emissions from glass melting 

furnaces to be continuously monitored. 

The revisions include specific 

continuous emissions monitoring, 

reporting, and recordkeeping 

requirements. 

C. What is EPA’s evaluation? 

Subpart 220–1 Portland Cement Plants 

It is EPAs understanding that there 

are three portland cement plants located 

in New York State that are subject to the 

RACT provisions of subpart 220–1. 

These three facilities are also subject to 

New York’s regional haze plan’s best 

available retrofit technologies (BART) 

provisions pursuant to 6 NYCRR Part 

249. 

Of the three cement plants, EPA has 

been informed that one of the facilities 

(Holcim) will be shutting down 

operations and surrendering the 

operating permit for the kiln. Another 

facility (Lafarge) will be modernizing 

the existing plant by replacing the two 

existing long wet kilns with a new short 

dry kiln and pre-heater pre-calciner 

tower. The third facility (LeHigh) 

concluded that SNCR technology is cost 

effective ($1,145/ton NOX removed) and 

will therefore be installing an SNCR. On 

August 28, 2012 (77 FR 51915), EPA 

approved these scenarios for each 

facility as BART determinations 

pursuant to Part 249. Although EPA 

believes that the BART determinations 

approved for these facilities would also 

constitute RACT, New York is obligated 

to submit the RACT determinations to 

EPA as SIP revisions in order to satisfy 

the subpart 220–1.6(b)(4) RACT 

requirement and sections 172(c)(1) and 

182(b) of the Act. 

According to EPA’s November 7, 1996 

policy memo, entitled ‘‘Approval 

Options for Generic RACT Rules 

Submitted to Meet the non-CTG VOC 

RACT Requirement and Certain NOX

RACT Requirements,’’ EPA may fully 

approve VOC and NOX RACT 

regulations provided: (1) The state has 

submitted a generic rule, and now 

believes that it has submitted to EPA all 

the source-specific rules and has 

submitted a negative declaration that to 

its best knowledge, there are no 

remaining unregulated sources, or (2) 

the generic rule covers only a limited 

number of sources, with emissions, in 

the aggregate, that are determined to be 

de-minimis. In a letter dated February 

28, 2013 to EPA, New York commits to 

submit the applicable single source NOX

RACT determinations to EPA by 

December 1, 2013. 

EPA evaluated the provisions of 

subpart 220–1 for consistency with the 

Act, EPA regulations, and EPA policy 

and proposes to conditionally approve 

them based on New York submitting the 

individual single source RACT 

determinations to EPA by December 1, 

2013. 

Subpart 220–2 Glass Plants 

It is EPA’s understanding that there 

are four glass plants located in New 

York State. Subpart 220–2 does not 

identify a specific control strategy or 

emission limit as RACT for these 

facilities and requires individual source 

specific RACT determinations. To date, 

EPA has not received any of those 

source specific RACT determinations. 

However, in a letter dated February 28, 

2013 to EPA, New York commits to 

submit the applicable single source NOX

RACT determinations to EPA by 

December 1, 2013. 

EPA evaluated the provisions of 

subpart 220–2 for consistency with the 

Act, EPA regulations, and EPA policy 

(see EPA’s RACT policy memo 

referenced above) and proposes to 

conditionally approve them based on 

New York submitting the individual 

single source RACT determinations to 

EPA by December 1, 2013. 

V. What is EPA’s evaluation of Part 

227–2, ‘‘Reasonably Available Control 

Technology (RACT) for Major Facilities 

of Oxides of Nitrogen (NOX)’’? 

A. Background 

New York adopted revisions to 

Subpart 227–2 for the purpose of 

imposing more stringent emission limits 

on major stationary sources of NOX that 

contribute to local and regional 

nonattainment of the 1997 and 2008 

ozone standards. The revisions to 

Subpart 227–2 essentially entail 

increasing the stringency of emissions 

limits for six of the source categories 

and lowering of the size thresholds for 

two categories of sources. There are also 

two revisions that will allow subject 

sources increased flexibility in 

achieving compliance. 

B. What are the new requirements of 

Part 227–2? 

The Subpart 227–2 revisions include 

the removal of several definitions (to be 

relocated to Part 200) and revision of 

other definitions, a change in the 

application and permitting 

requirements, a change in emission 

limits for most boiler categories, a 

requirement to submit a new RACT 

proposal for combined cycle 

combustion turbines, and revisions to 

the compliance options. 

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21306 Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 / Proposed Rules 

Section 227–2.2 was revised to 

remove the definitions of boiler, 

combined cycle combustion turbine, 

combustion turbine, continuous 

emissions monitoring system (CEMS) 

certification protocol, emergency power 

generating stationary internal 

combustion engine, preliminary 

continuous emissions monitoring 

system plan, simple cycle combustion 

turbine, and very large boiler. These 

definitions will be moved to 6 NYCRR 

Part 200 (preliminary continuous 

emissions monitoring system plan will 

be changed to continuous emissions 

monitoring system plan), as stated 

above. Also, the revisions will modify 

the terms mid-size boiler and small 

boiler. A mid-size boiler will now be 

defined as ‘‘a boiler with a maximum 

heat input capacity greater than 25 

million Btu per hour and equal to or less 

than 100 million Btu per hour.’’ A small 

boiler will now be defined as ‘‘a boiler 

with a maximum heat input capacity 

equal to or greater than one million Btu 

per hour and equal to or less than 25 

million Btu per hour.’’ 

Section 227–2.3 was revised to 

specifically require that subject facilities 

must submit an application for a Title 

V permit or permit modification 

(depending on the current facility 

status). The requirement to submit a 

compliance plan was removed since this 

information is now included in the 

facility’s permit application. 

Section 227–2.4 was revised to change 

the presumptive RACT emission limits 

for very large, large, and mid-size 

boilers. Combined cycle turbines will be 

required to perform a case-by-case 

RACT analysis. Also, the revisions will 

remove the 500-hour non-ozone season 

presumptive emission limit exemption 

for simple cycle combustion turbines. 

Section 227–2.5 was revised to 

include a shutdown option for any 

subject emission source. The intent to 

shut down an emission source must be 

recorded as part of a permit 

modification prior to January 1, 2012, 

wherein the owner or operator commits 

to permanently shut down the emission 

source prior to December 31, 2014. 

Section 227–2.5 also allows for 

additional compliance flexibility via 

applying for a system averaging plan. 

C. What is EPA’s evaluation? 

NOX Emission Rates 

New York has revised section 227–2.4 

(Control requirements) requiring stricter 

NOX emission limits on three boiler 

categories, requiring owners of 

combined cycle combustion turbines to 

submit a RACT proposal that the State 

expects will result in additional NOX

emission reductions, as well as other 

revisions that are expected to lower 

NOX emissions. New York expects that 

when the stricter control requirements 

are implemented by the July 1, 2014 

compliance date, actual NOX emissions 

in the State will be reduced by 28,796 

tons per year or a daily reduction of 78.9 

tons from 2007 levels. The following 

summarizes the revised control 

requirements at section 227–2.4 that are 

expected to result in NOX reductions: 

• For very large boilers, presumptive 

NOX emission limits are lowered to the 

range of 0.08 to 0.20 pounds per million 

BTU (lb/mmBTU), depending upon the 

type fuel and boiler configuration. The 

new limits represent NOX reductions in 

the range of 40% to 88%. 

• For large boilers, presumptive NOX

emission limits are lowered to the range 

of 0.06 to 0.20 lb/mmBTU which 

equates to NOX reductions in the range 

of 50% to 73.3%. 

• For mid-size boilers, presumptive 

NOX emissions are lowered to the range 

of 0.05 to 0.20 lb/mmBTU which 

equates to NOX reductions in the range 

of 33% to 50%. 

• For small boilers, the upper range of 

this boiler category is lowered from 50 

mmBTU/hr to 25 mmBTU/hr thereby 

requiring boilers in the range greater 

than 25 mmBTU/hr up to 50 mmBTU/ 

hr to be reclassified as mid-size boilers 

thereby requiring these boilers to meet 

the presumptive emission limits for 

mid-size boilers. Currently these small 

boilers only need to conduct an annual 

tune-up. New York’s revised definitions 

of the terms ‘‘Small boiler’’ and ‘‘Midsize boiler’’ are found at sections 227– 

2.2(b)(8) and 227–2.2(b)(4), respectively, 

and these revised definitions are 

acceptable to EPA. 

• For small size boilers, the lower 

limit of this boiler category was 20 

mmBTU/hr (10 mmBTU/hr for coal and 

residual oil-fired sources in the severe 

ozone nonattainment area) but is now 

equal to or greater than one mmBTU/hr. 

Therefore, the additional boilers will 

need to comply with the section 227– 

2.4(d) requirement to conduct an annual 

tune-up. 

• For all combined cycle combustion 

turbines that operate after July 1, 2014, 

owners or operators must submit a 

RACT proposal to NYSDEC for 

approval. 6 NYCRR 227–2.4(e)(3). The 

State’s approved RACT plan would be 

submitted to EPA for approval as a SIP 

revision in accordance with section 

227–2.3(c). 

• New York removed the presumptive 

emission limit exemption for peaking 

combustion turbines that operate less 

than 500 hours during the non-ozone 

season. These sources must now comply 

annually with the control requirements 

at section 227–2.4(e). 

• Small combustion turbines and 

small stationary internal combustion 

engines are now required to comply 

with the section 227–2.4(d) requirement 

to conduct an annual tune-up. New 

York defines the terms ‘‘Small 

combustion turbine’’ and ‘‘Small 

stationary internal combustion engine’’ 

at sections 227–2.2(b)(9) and (10), 

respectively, and these new definitions 

are acceptable to EPA. 

EPA believes that the new 

presumptive emission limits and other 

control requirements will result in 

additional NOX reductions throughout 

the State thereby strengthening New 

York’s ozone SIP and will help the State 

attain and maintain the 1997 ozone 

standard and help achieve attainment of 

the 2008 8-hour ozone standard. 

Compliance Dates and Flexibility 

There are two revisions to Part 227– 

2 that will allow subject sources 

increased flexibility in achieving 

compliance—one allows different 

owners to engage in a systems averaging 

plan and the second allows a permanent 

shutdown by a date certain as a 

compliance option. 

Systems Averaging Plan 

New York revised the definition of 

‘‘system’’ at section 227–2.2(b)(12), as 

used in the term ‘‘system averaging 

plan’’ in subpart 227–2.5(b), to read as 

‘‘a combination of operating emission 

sources that are located within the same 

ozone nonattainment area. A system 

may consist of multiple emission 

sources at multiple facilities having 

different owners and/or operators.’’ New 

York verbally confirmed to EPA that the 

detailed procedures for determining 

compliance with the averaging plan are 

included in title V permits of those 

facilities that choose to make use of this 

option. In addition, New York’s system 

averaging plan requires that ‘‘every 

owner or operator of an emission source 

participating in the system averaging 

plan is liable for any and all violations 

of the provisions of this Subpart [i.e., 

subpart 227–2] by any owner or operator 

of any emission source participating in 

the system averaging plan.’’ 6 NYCRR 

227–2.5(b)(4). New York’s averaging 

provision, 227–2.5(b)(2) further restricts 

the plan by only allowing averaging of 

facilities within the ‘‘severe ozone 

nonattainment area’’ but not with 

facilities inside and outside the 

nonattainment area. Although EPA has 

not classified any 8-hour ozone 

nonattainment areas in New York as 

severe, New York retained the term 

‘‘severe ozone nonattainment area’’ to 

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Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 / Proposed Rules 21307 

maintain consistency with existing SIP 

approved regulations and ‘‘antibacksliding’’ provisions of the Act. 

These affected counties are the same 

counties defined by EPA for New York’s 

marginal 2008 8-hour ozone 

nonattainment area for the New York 

City Metropolitan area and include the 

same counties now being maintained for 

the 1997 8-hour moderate ozone New 

York City Metropolitan area. Since New 

York avoids potential confusion by 

defining the affected counties in the 

‘‘severe nonattainment area,’’ this is 

acceptable to EPA. 

Shutdown of an Emissions Source 

New York provides owners/operators 

with a new compliance option at section 

227–2.5(d) that allows them to comply 

with the State’s NOX RACT 

requirements by shutting down an 

emission source by a date certain. New 

York requires that, ‘‘The intent to shut 

down must be recorded as part of a 

federally enforceable permit 

modification prior to January 1, 2012, 

wherein the owner or operator commits 

to permanently shut down the emission 

source prior to December 31, 2014.’’ 

New York’s revised system averaging 

plan is acceptable to EPA as it is 

enforceable through federally 

enforceable title V permits and it 

reflects current situations where there 

could be multiple ownership of a 

particular facility. 

EPA evaluated the provisions of Part 

227–2 for consistency with the Act, EPA 

regulations, and EPA policy and 

proposes to approve them. 

VI. What other revisions did New York 

make? 

New York also made administrative 

changes to Part 200, ‘‘General 

Provisions’’ which reflect 

implementation of the Part 212, 220 and 

227–2 provisions. The Part 200 

revisions also reflect implementation of 

provisions for three previously 

approved New York regulations, Part 

228, ‘‘Surface Coating Processes, 

Commercial and Industrial Adhesives, 

Sealants and Primers,’’ Part 234, 

‘‘Graphic Arts,’’ and Part 241, ‘‘Asphalt 

Pavement and Asphalt Based Surface 

Coating,’’ (see 77 FR 13974). 

Specifically, New York made 

amendments to section 200.1, 

‘‘Definitions.’’ The section 200.1 

amendments add the definitions for the 

terms boiler, combined cycle 

combustion turbine, combustion 

turbine, continuous emissions 

monitoring system (CEMS) certification 

protocol, continuous emissions 

monitoring system plan, emergency 

power generating stationary internal 

combustion engine, simple cycle 

combustion turbine, and very large 

boiler. These definitions are being 

included under section 200.1 for 

consistency due to their use in multiple 

regulations. 

The revisions to Part 200 will also add 

new references in section 200.9, 

‘‘Referenced Material,’’ Table 1. The 

revisions to Table 1 include all 

documents referenced in the proposed 

amendments to Parts 212, 220, 227–2 

and previously approved Parts 228, 234 

and 241. It is important to note that EPA 

is proposing to approve only those 

revisions made to Part 200, specifically 

sections 200.1 and 200.9, as effective 

January 1, 2011. 

VII. What is EPA’s conclusion? 

EPA has evaluated New York’s 

submittal for consistency with the Act, 

EPA regulations, and EPA policy. EPA 

proposes that the revisions made to 6 

NYCRR Part 200, ‘‘General Provisions,’’ 

Part 212, ‘‘General Process Emission 

Sources,’’ Part 220, ‘‘Portland Cement 

Plants and Glass Plants,’’ and Part 227– 

2, ‘‘Reasonably Available Control 

Technology (RACT) For Major Facilities 

of Oxides of Nitrogen (NOX)’’ with 

effective dates of January 1, 2011, 

September 30, 2010, July 11, 2010 and 

July 8, 2010, respectively, meet the SIP 

requirements of the Act. EPA is 

proposing to: approve sections 200.1 

and 200.9; approve Part 212; to 

conditionally approve Part 220 based on 

New York’s commitment to submit the 

individual RACT determinations to EPA 

as SIP revisions by December 1, 2013; 

and, to approve Part 227–2. These 

revisions meet the requirements of the 

Act and EPA’s regulations, and are 

consistent with EPA’s guidance and 

policy. EPA is taking this action 

pursuant to section 110 and part D of 

the Act and EPA’s regulations. 

EPA is proposing a conditional 

approval of New York’s proposed 

revisions to 6 NYCRR Part 220 based on 

New York’s February 28, 2013 letter, 

committing to submit the applicable 

NOX RACT single source SIPs by 

December 1, 2013. 

Under section 110(k)(4) of the Act, 

EPA may conditionally approve a plan 

based on a commitment from the State 

to adopt specific enforceable measures 

by a date certain, but not later than 1 

year from the date of approval. If EPA 

conditionally approves the commitment 

in a final rulemaking action, the State 

must meet its commitment to adopt the 

identified source specific SIP revisions. 

If the State fails to do so, this action will 

become a disapproval upon the State’s 

failure to meet its commitment. EPA 

will notify the State by letter that this 

action has occurred. If the conditional 

approval converts to a disapproval, the 

commitment will no longer be a part of 

the approved New York SIP. Upon 

notification to the State that the 

conditional approval has converted to a 

disapproval, EPA will publish a notice 

in the Federal Register notifying the 

public that the conditional approval 

automatically converted to a 

disapproval. If EPA disapproves the 

proposed revisions to Part 220, such 

action will start a sanctions and FIP 

clock (see section VII). If the State meets 

its commitment, within the applicable 

time frame, the conditionally approved 

submission will remain a part of the 

SIP. If EPA approves the submittals, the 

revisions to Part 220 will be fully 

approved into the SIP in their entirety 

and the conditional approval removed. 

VIII. What are the consequences if a 

final conditional approval is converted 

to a disapproval? 

For didactical purposes, EPA provides 

the following discussion regarding the 

consequences of a final conditional 

approval converting to a disapproval. 

EPA does not expect this situation to 

occur. 

The Act provides for the imposition of 

sanctions and the promulgation of a 

federal implementation plan (FIP) if 

states fail to correct any deficiencies 

identified by EPA in a final disapproval 

action within certain timeframes. 

A. What are the Act’s provisions for 

sanctions? 

As mentioned above, if New York 

does not submit the applicable NOX

RACT single source SIPs by September 

1, 2013, EPA’s conditional approval 

converts to a disapproval. If EPA 

disapproves a required SIP submittal or 

component of a SIP submittal, section 

179(a) provides for the imposition of 

sanctions unless the deficiency is 

corrected within 18 months of the final 

rulemaking of disapproval. The first 

sanction would apply 18 months after 

EPA disapproves the SIP submittal. 

Under EPA’s sanctions regulations, 40 

CFR 52.31, the first sanction would be 

2:1 offsets for sources subject to the new 

source review requirements under 

section 173 of the Act. If, six months 

after the first sanction is imposed, the 

state has still failed to submit a SIP for 

which EPA proposes full or conditional 

approval, the second sanction will 

apply. The second sanction is a 

limitation on the receipt of federal 

highway funds. EPA also has authority 

under section 110(m) to sanction 

broader than the affected area as defined 

in 52.31(a)(3). 

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21308 Federal Register / Vol. 78, No. 69 / Wednesday, April 10, 2013 / Proposed Rules 

B. What federal implementation plan 

provisions apply if a state fails to submit 

an approvable plan? 

In addition to sanctions, if EPA finds 

that a state failed to submit the required 

SIP revision or if EPA disapproves the 

required SIP revision, or a portion 

thereof, EPA must promulgate a FIP no 

later than 2 years from the date of the 

finding if the deficiency has not been 

corrected. 

IX. Statutory and Executive Order 

Reviews 

Under the 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 Act. Accordingly, this proposed 

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 proposed 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) because 

application of those requirements would 

be inconsistent with the 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 proposed action 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Oxides of 

Nitrogen, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: April 1, 2013. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2013–08398 Filed 4–9–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 411 

[CMS–1454–P] 

RIN 0938–AR70 

Medicare Program; Physicians’ 

Referrals to Health Care Entities With 

Which They Have Financial 

Relationships: Exception for Certain 

Electronic Health Records 

Arrangements 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

revise the exception to the physician 

self-referral prohibition for certain 

arrangements involving the donation of 

electronic health records items and 

services. Specifically, it would extend 

the sunset date of the exception, remove 

the electronic prescribing capability 

requirement, and update the provision 

under which electronic health records 

technology is deemed interoperable. In 

addition, we are requesting public 

comment on other changes we are 

considering. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on June 10, 2013. 

ADDRESSES: In commenting, please refer 

to file code CMS–1454–P. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–1454–P, P.O. Box 8013, Baltimore, 

MD 21244–8013. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–1454–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

4. By hand or courier. Alternatively, 

you may deliver (by hand or courier) 

your written comments ONLY to the 

following addresses prior to the close of 

the comment period: 

a. For delivery in Washington, DC— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Room 445–G, Hubert 

H. Humphrey Building, 200 

Independence Avenue SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, call 

telephone number (410) 786–9994 in 

advance to schedule your arrival with 

one of our staff members. 

Comments erroneously mailed to the 

addresses indicated as appropriate for 

hand or courier delivery may be delayed 

and received after the comment period. 

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