```

[Federal Register Volume 78, Number 69 (Wednesday, April 10, 2013)]
[Proposed Rules]
[Pages 21302-21308]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-08398]

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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.

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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:

[[Page 21303]]

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\
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    \1\ On 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.
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    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.

[[Page 21304]]

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.
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    \2\ As 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.''
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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

[[Page 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.

[[Page 21306]]

    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 ``Mid-size 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

[[Page 21307]]

maintain consistency with existing SIP approved regulations and ``anti-
backsliding'' 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).

[[Page 21308]]

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
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