43892 Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Proposed Rules 

which no changes are proposed in the 

Part 98 amendment proposal. 

II. Statutory and Executive Order 

Reviews 

The statutory and executive order 

reviews do not apply to this notice 

because this notice does not propose 

any regulatory changes. For a complete 

discussion of the statutory and 

executive order reviews as they apply to 

the proposed amendments to 40 CFR 

part 2, see the notice ‘‘Proposed 

Confidentiality Determinations for Data 

Required under the Mandatory 

Greenhouse Gas Reporting Rule and 

Proposed Amendment to Special Rules 

Governing Certain Information Obtained 

under the Clean Air Act’’ (75 FR 39094). 

List of Subjects 40 CFR Part 2 

Environmental protection, 

Administrative practice and procedure, 

Reporting and recordkeeping 

requirements. 

Dated: July 20, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–18229 Filed 7–26–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2010–0321, FRL–9180–5] 

Approval and Promulgation of 

Implementation Plans; New York 

Prevention of Significant Deterioration 

of Air Quality and Nonattainment New 

Source Review 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the New York State 

Implementation Plan (SIP) submitted by 

the New York State Department of 

Environmental Conservation on March 

3, 2009. The proposed revisions would 

create a new New York State Prevention 

of Significant Deterioration of Air 

Quality (PSD) regulations program and 

modify the existing New York State 

Nonattainment New Source Review 

(NNSR) regulations in the SIP. These 

proposed revisions also address changes 

mandated by the revised Federal New 

Source Review (NSR) regulations, 

referred to as the ‘‘2002 NSR Reform 

Rules.’’ EPA’s 2002 NSR Reform Rules, 

proposed by New York State for 

inclusion in the New York SIP with 

some changes, include provisions for 

baseline emissions calculations, an 

actual-to-projected-actual methodology 

for calculating emissions changes, 

options for plantwide applicability 

limits, and recordkeeping and reporting 

requirements. If EPA finalizes approval 

of New York’s regulations, New York 

will implement its own PSD and NNSR 

State regulations. EPA notes that, in this 

proposal, no action is being taken on 

certain items of New York’s revisions 

that relate to the Prevention of 

Significant Deterioration and Title V 

Greenhouse Gas Tailoring Rule 

(‘‘Tailoring Rule’’). 

DATES: Comments must be received on 

or before August 26, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID number EPA– 

R02–OAR–2010–0321, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: Werner.Raymond@epa.gov. 

• Fax: 212–637–3901. 

• Mail: Raymond Werner, Chief, Air 

Programs Branch, Environmental 

Protection Agency, Region 2 Office, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866. 

• Hand Delivery: Raymond Werner, 

Chief, Air Programs Branch, 

Environmental Protection Agency, 

Region 2 Office, 290 Broadway, 25th 

Floor, New York, New York 10007– 

1866. Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

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

4:30 p.m. excluding Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R02–OAR–2010– 

0321. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://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 e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 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 a.m. to 4 

p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Frank Jon, Air Programs Branch, 

Environmental Protection Agency, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866, (212) 637–4085; 

e-mail address: jon.frank@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, references 

to ‘‘EPA,’’ ‘‘we,’’ ‘‘us,’’ or ‘‘our,’’ are 

intended to mean the Environmental 

Protection Agency. The supplementary 

information is arranged as follows: 

I. What is being addressed in this 

document? 

II. What is the background for this action? 

III. What is EPA’s analysis of New York’s 

NSR rule revisions? 

IV. What action is EPA proposing to take? 

V. Statutory and Executive Order Reviews 

I. What is being addressed in this 

document? 

On March 3, 2009, the State of New 

York, through the New York State 

Department of Environmental 

Conservation (NYSDEC), submitted to 

EPA Region 2 revisions to the New York 


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State Implementation Plan (SIP). The 

submittal consists of revisions to three 

regulations that are already part of the 

New York SIP. The affected regulations 

are: 6 New York Code of Rules and 

Regulations (NYCRR) Part 231, New 

Source Review for New and Modified 

Facilities; 6 NYCRR Part 200, General 

Provisions; and 6 NYCRR Part 201, 

Permits and Certificates. The revisions 

were made to create a new New York 

State PSD regulation program and to 

update the existing New York State 

nonattainment regulations consistent 

with changes to the Federal NSR 

regulations published on December 31, 

2002 (67 FR 80186). In today’s action, 

EPA is proposing to approve those 

revisions with the caveat that EPA is not 

proposing action at this time on (1) the 

PSD permitting threshold provisions to 

the extent that those provisions require 

permits for sources of greenhouse gas 

(GHG) emissions that equal or exceed 

the 100/250 tons per year (tpy) GHG 

levels but are less than the thresholds 

identified in EPA’s final Tailoring Rule 

at 75 FR 31514, 31606 (June 3, 2010); 

and (2) the PSD significance level 

provisions of New York’s rule to the 

extent that those provisions treat as 

significant GHG emissions increases 

that are less than the thresholds 

identified in the final Tailoring Rule. Id. 

In accordance with the final Tailoring 

Rule, New York is expected to submit a 

letter to EPA addressing these issues 

shortly. Id. After receiving New York’s 

letter, EPA will take action with respect 

to these additional items. Today’s 

proposed approval with respect to GHG 

emissions above the Tailoring Rule 

thresholds is premised on our 

understanding that the New York State 

PSD regulations provide authority to 

regulate GHG emissions within EPA’s 

meaning of the term ‘‘subject to 

regulation.’’ See 75 FR 31582. This 

understanding is based upon EPA’s 

review of New York’s definition of 

‘‘Regulated NSR Contaminant,’’ which 

includes any contaminant that is 

‘‘subject to regulation’’ under the Clean 

Air Act. 6 NYCRR § 231–4.1(43). New 

York is also expected to address its 

authority to regulate GHG emissions in 

its letter. In the event that New York 

articulates the view that it does not have 

authority to regulate greenhouse gases, 

EPA will revisit this issue before taking 

final action. 

II. What is the background for this 

action? 

On December 31, 2002, EPA 

published final rule changes to 40 Code 

of Federal Regulations (CFR) parts 51 

and 52, regarding the Clean Air Act’s 

PSD and Nonattainment New Source 

Review (NNSR) programs. 67 FR 80186. 

Available at http://www.epa.gov/nsr/fr/

20021231_80186.pdf. On November 7, 

2003, EPA published a final action on 

the reconsideration of the December 31, 

2002 final rule changes. 68 FR 63021. In 

that November 7th final action, EPA 

added the definition of ‘‘replacement 

unit,’’ and clarified an issue regarding 

plantwide applicability limitations 

(PALs). On June 13, 2007, EPA revised 

the rules to remove provisions for 

pollution control projects and clean 

units. 72 FR 32526. EPA further revised 

the rules on December 21, 2007, to 

clarify when facilities must keep records 

and report emissions when a 

‘‘reasonable possibility’’ test shows that 

projected emissions increases could 

equal or exceed 50% of the Clean Air 

Act’s NSR significant levels for a 

regulated NSR pollutant. 72 FR 72607. 

Collectively, these four final actions are 

referred to as the ‘‘2002 NSR Reform 

Rules.’’ The 2002 NSR Reform Rules are 

part of EPA’s implementation of parts C 

and D of title I of the Clean Air Act 

(CAA), 42 U.S.C. 7470–7515. Part C of 

title I of the CAA, 42 U.S.C. 7470–7492, 

is the PSD program, which applies in 

areas that meet the National Ambient 

Air Quality Standards (NAAQS)— 

‘‘attainment’’ areas—as well as in areas for 

which there is insufficient information to 

determine whether the area meets the 

NAAQS—‘‘unclassifiable’’ areas. Part D 

of title I of the CAA, 42 U.S.C. 7501– 

7515, is the NNSR program, which 

applies in areas that are not in 

attainment of the National Ambient Air 

Quality Standards (NAAQS)— 

‘‘nonattainment areas.’’ Collectively, the 

PSD and NNSR programs are referred 

to as the ‘‘New Source Review’’ or ‘‘NSR 

programs’’. EPA regulations 

implementing these programs are 

contained in 40 CFR 51.165, 51.166, 

52.21, 52.24, and part 51, Appendix S. 

The CAA’s NSR programs are 

preconstruction permitting programs 

applicable to new and modified 

stationary sources of air pollutants 

regulated under the CAA. 

The NSR programs include a 

combination of air quality planning and 

air pollution control technology 

requirements. Briefly, section 109 of the 

CAA, 42 U.S.C. 7409, requires EPA to 

promulgate primary NAAQS to protect 

public health and secondary NAAQS to 

protect public welfare. Once EPA sets 

those standards, States must develop, 

adopt, and submit to EPA for approval, 

a SIP that contains emissions limitations 

and other control measures to attain and 

maintain the NAAQS. Each SIP is 

required to contain a preconstruction 

review program for the construction and 

modification of any stationary source of 

air pollution to: (1) Assure that the 

NAAQS are achieved and maintained; 

(2) protect areas of clean air; (3) protect 

air quality related values (such as 

visibility) in national parks and other 

areas; (4) assure that appropriate 

emissions controls are applied; (5) 

maximize opportunities for economic 

development consistent with the 

preservation of clean air resources; and 

(6) ensure that any decision to increase 

air pollution is made only after full 

public consideration of the 

consequences of the decision. 

The 2002 NSR Reform Rules made 

changes to four areas of the NSR 

programs. In summary, the 2002 Rules: 

(1) Provide a new method for 

determining baseline actual emissions; 

(2) adopt an actual-to-projected-actual 

methodology for determining whether a 

major modification has occurred; (3) 

allow major stationary sources to 

comply with plant-wide applicability 

limits (PALs) to avoid having a 

significant emissions increase that 

triggers the requirements of the major 

NSR program; and (4) require new 

recordkeeping and reporting. On 

November 7, 2003, EPA published a 

final action on its reconsideration of the 

2002 NSR Reform Rules (68 FR 63021), 

which added a definition for 

‘‘replacement unit’’ and clarified an 

issue regarding PALs. After the 2002 

NSR Reform Rules were finalized and 

effective (March 3, 2003), various 

petitioners challenged numerous 

aspects of the 2002 NSR Reform Rules, 

along with portions of EPA’s 1980 NSR 

Rules (45 FR 5276, August 7, 1980). On 

June 24, 2005, the DC Circuit Court 

issued a decision on the challenges to 

the 2002 NSR Reform Rules. New York 

v. United States, 413 F.3d 3 (DC Cir. 

2005). In summary, the DC Circuit Court 

vacated portions of the Rules pertaining 

to clean units and pollution control 

projects, remanded a portion of the 

Rules regarding recordkeeping, e.g., 40 

CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), 

and either upheld or did not comment 

on the other provisions included as part 

of the 2002 NSR Reform Rules. On June 

13, 2007, EPA revised the Rules to 

remove provisions for pollution control 

projects and clean units. On December 

21, 2007, EPA took final action 

regarding the remanded portion on 

recordkeeping by promulgating the 

reasonable possibility in recordkeeping 

rule. Today’s action is consistent with 

the decision of the DC Circuit Court 

because New York’s submittal does not 

include any portions of the 2002 NSR 

Reform Rules that were vacated as part 


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1EPA’s environmental impact analysis of the 10- 

year look-back provision was provided at the time 

of the 2002 NSR Reform rule in EPA’s 

‘‘Supplemental Analysis of the Environmental 

Impact of the 2002 Final NSR Improvement Rules’’ 

and is available at http://www.epa.gov/nsr/ 

actions.html#2002. 

of the DC Circuit Court’s June 2005 

decision. 

The 2002 NSR Reform Rules require 

that State agencies adopt and submit 

revisions to their SIP permitting 

programs implementing the minimum 

program elements of the 2002 NSR 

Reform Rules no later than January 2, 

2006. (Consistent with changes to 40 

CFR 51.166(a)(6)(i), State agencies are 

now required to adopt and submit SIP 

revisions within three years after new 

amendments are published in the 

Federal Register.) State agencies may 

meet the requirements of 40 CFR part 

51, and the 2002 NSR Reform Rules, 

with different but equivalent 

regulations. However, if a State decides 

not to implement any of the new 

applicability provisions, that State is 

required to demonstrate that its existing 

program is at least as stringent as the 

Federal program. On March 3, 2009, the 

State of New York submitted a SIP 

revision for the purpose of revising the 

State’s NSR permitting provisions. 

These changes were made primarily to 

adopt EPA’s 2002 NSR Reform Rules 

with a few modifications. As discussed 

in further detail below, EPA believes the 

revisions contained in the New York 

submittal are approvable for inclusion 

into the New York SIP, with the caveat 

that we are taking no action on the 

specific items identified in Section I of 

this proposal related to the Tailoring 

Rule thresholds. 

III. What is EPA’s analysis of New 

York’s NSR rule revisions? 

New York currently has an approved 

NNSR program for new and modified 

sources. Today, EPA is proposing to 

approve revisions to New York’s 

existing NNSR program and a new PSD 

program. These proposed revisions 

became State effective on March 5, 

2009, and were submitted to EPA on 

March 3, 2009. Copies of the revised 

rules, as well as the State’s Regulatory 

Impact Statement (RIS), can be obtained 

from the Docket, as discussed in the 

‘‘Docket’’ section above. In general, the 

New York State revisions to the rule are 

similar to the Federal NSR Reform Rules 

except for a few specific provisions. A 

discussion of the specific changes to 

New York’s rule, proposed for inclusion 

in the SIP, that are different from the 

EPA rules are as follows. 

A. Definition for Baseline Period 

Under the major NSR program, an 

existing major facility may modify, or 

even completely replace, or add, 

emissions units without obtaining a 

major NSR permit, so long as the 

‘‘projected actual emissions’’ do not 

increase by a significant amount over 

the levels emitted during the ‘‘baseline 

period’’ at the plant as a whole. 

The revised New York regulations in 

6 NYCRR Part 231 establish a uniform 

period provision for electric utility 

steam generating units (EUSGUs) and 

non-EUSGUs. The revised Part 231 

requires that all emissions sources select 

a baseline period using the annual 

average of any twenty-four (24) 

consecutive month period within the 

five (5) year period that precedes a 

proposed change. Sources are not 

allowed to go beyond this time period. 

Under the Federal NSR rule, EUSGUs 

must select a baseline period using any 

24-consecutive month period within the 

5-year period immediately preceding 

the actual construction or another 24- 

consecutive month period that is 

demonstrated to be more representative. 

For non-EUSGUs, they must take the 

average of annual emissions of any 24- 

consecutive months within the 10-year 

period that precedes the proposed 

change. By allowing a longer period for 

selecting the 24-month average, sources 

are more likely to find a period of time 

with high emissions that will result in 

an increase below significance levels. 

Though EPA believes that the Federal 

rule allowing a 10-year look-back for 

defining the baseline period for nonEUSGUs retains the environmental 

benefits of the NSR program,1 the 

revised Part 231 definition of Baseline 

Period is more restrictive than the 

Federal definition for non-EUSGUs 

because the Federal definition allows 

only a 5-year look-back period. 

B. Single Baseline for Facilities 

Undergoing NSR Modifications 

The revised Part 231 requires that 

facilities select a single baseline period 

for all regulated NSR pollutants when 

calculating baseline actual emissions. 

Under the Federal NSR rule, facilities 

are allowed to choose a different 

baseline period within the look-back 

period for each NSR pollutant. This 

allows sources to pick and choose the 

baseline period, for each pollutant, most 

likely to result in an increase below 

significance levels. New York’s 

approach would not allow for this 

flexibility, and would increase the 

likelihood of requiring NSR review for 

more regulated NSR pollutants. So, this 

State requirement is more stringent than 

the Federal requirement. 

C. Plantwide Applicability Limits (PALs) 

A PAL is a voluntary option that 

provides a facility with the ability to 

manage facility-wide emissions without 

triggering major NSR review. If a facility 

keeps the emissions below a plantwide 

actual emissions cap (that is, an actual 

PAL), then these regulations allow the 

facility to avoid the major NSR 

permitting process when the facility 

makes alterations to the plant or 

individual emissions units. In return for 

this flexibility, the facility must monitor 

and comply with more stringent 

requirements for all of the emissions 

units under the PAL. 

The revised Part 231 allows facilities 

to establish a PAL for an initial term not 

to exceed 10 years. However, the rule 

aligns the PAL term with the facility’s 

title V permit so that they both expire 

at the same time. This will allow the 

PAL to be renewed with the title V 

facility under the same administrative 

and permit review process and will 

result in PAL renewals earlier than 

under the Federal rule. 

The revised Part 231 also requires a 

reduction in the PAL of up to 25% or 

implementation of best available control 

technology (BACT), whichever is less 

stringent, by the end of the fifth year of 

the initial PAL. The earlier PAL 

renewals and PAL reduction programs 

under New York’s revised Part 231 are 

more stringent than the Federal rules. 

D. The Facility Need Not Be Major for 

the Specific Nonattainment Pollutant in 

Order for the Specific Nonattainment 

Significant Threshold To Apply 

New York’s revised Part 231 does not 

require that the facility be an existing 

major source for the applicable 

nonattainment pollutant before looking 

at the specific nonattainment significant 

threshold for applicability purposes. In 

other words, a facility only needs to be 

a major source for one nonattainment 

pollutant, for example, ozone, for all 

other nonattainment significant 

thresholds to apply for applicability 

purposes. The revised Part 231 for 

nonattainment areas follows the same 

applicability procedures as the PSD 

rules, i.e., the facility only needs to be 

an existing major stationary source for 

an attainment pollutant and then all the 

significant thresholds will apply for 

applicability purposes. This is more 

stringent than the Federal requirements 

in nonattainment areas which indicate 

that the existing facility must be a major 

stationary source for that specific 

nonattainment pollutant before the 

applicable significant nonattainment 

pollutant threshold is applied. 


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E. Reasonable Possibility in 

Recordkeeping 

Revised Part 231 expands upon the 

requirements of EPA’s December 21, 

2007 final Reasonable Possibility in 

Recordkeeping rule by incorporating 

recordkeeping and/or monitoring 

requirements for all insignificant 

modifications. For example, any 

modification with a ‘‘project emission 

potential’’ (a term equivalent to EPA’s 

projected actual emissions increase) 

which is less than 50% of the applicable 

significant project threshold, or any 

modification with a project emission 

potential which, when emissions from 

independent and unrelated factors such 

as demand growth are added, is less 

than 50% of the applicable significant 

project threshold, must maintain for a 

minimum of 5 years: (1) A description 

of the modification; (2) An 

identification of each new or modified 

emission sources(s) including the 

associated processes, and emission 

units; (3) the calculation of the projected 

emission potential for each modified 

emission source(s) including supporting 

documentation; and (4) the date the 

modification commenced operation. 

The revised Part 231 also extends the 

pre-construction notification 

requirement (must submit an 

application to the NYSDEC) to any 

facility that proposes a modification 

with a project emission potential which 

equals or exceeds 50% of the applicable 

significant project threshold or proposes 

a modification with a project emission 

potential which is less than 50% of the 

applicable significant project threshold, 

but equals or exceeds 50% of the 

applicable significant project threshold 

when emissions from independent and 

unrelated factors such as demand 

growth are added. 

For the post-change monitoring 

requirements, the facilities must keep 

records of their calculations of emission 

increases from independent and 

unrelated factors such as demand 

growth, monitor post-modification 

emissions, and submit annual reports to 

verify the accuracy of their calculations. 

Under the Federal NSR rule, 

provisions for recordkeeping are 

applicable to: (1) Modifications with a 

projected actual emissions increase that 

equals or exceeds 50% of the applicable 

NSR significant threshold, and (2) 

modifications with a projected actual 

emissions increase that is less than 50% 

of the applicable NSR significance 

threshold but when emissions 

attributable to independent and 

unrelated factors such as demand 

growth are added, equals or exceeds 

50% of the applicable NSR significance 

threshold. For (1) above, EPA requires 

emission sources to comply with both 

pre-change and post-change 

recordkeeping and reporting 

requirements. For (2) above, EPA 

requires only pre-change recordkeeping 

requirements. 

Also, the final Federal Reasonable 

Possibility Rule only requires EUSGUs 

to notify the permitting authority, prior 

to beginning actual construction, for any 

modification with a project emission 

potential which equals or exceeds 50% 

of the applicable significant project 

threshold. Therefore, the revised Part 

231 is more restrictive than the Federal 

requirements. 

Except as described above, the State 

Part 231 rules are substantively the 

same as the existing PSD and 

nonattainment Federal rules. 

F. Prevention of Significant 

Deterioration of Air Quality: 6 NYCRR 

Part 231 

The State rule does not incorporate 

the portions of the Federal rules that 

were vacated by the DC Circuit Court, 

specifically, the clean unit provisions 

and the pollution control projects 

exclusion. Except for the items 

described above in Sections A through 

E, the revisions included in New York’s 

PSD program are substantively the same 

and, in some instances (as discussed 

above), more stringent than the 

corresponding Federal provisions. 

As part of its review of the New York 

SIP submittal, EPA performed a review 

of the proposed revisions and has 

determined that they are consistent with 

the program requirements for the 

preparation, adoption and submittal of 

implementation plans for the Prevention 

of Significant Deterioration of Air 

Quality, set forth at 40 CFR 51.166, 

including the 2002 NSR Reform Rules. 

G. Review of New Sources in 

Nonattainment Areas: 6 NYCRR Part 

231 

New York’s permitting requirements 

for major sources in nonattainment 

areas are set forth at 6 NYCRR Part 231. 

The New York nonattainment NSR 

program was originally approved into 

the New York SIP on July 1, 1980 and 

applies to the construction and 

modification of any major stationary 

source of air pollution in a 

nonattainment area, as required by part 

D of title I of the CAA. To receive 

approval to construct, a source that is 

subject to this regulation must show that 

it will not cause a net increase in 

pollution with more than 1:1 offset 

ratio, will not create a delay in meeting 

the NAAQS, and will install and use 

control technology that achieves the 

LAER. The revisions to this regulation, 

which EPA is proposing to approve into 

the SIP, update the existing provisions 

to be consistent with the current Federal 

nonattainment rule in 40 CFR 51.165, 

including the 2002 NSR Reform Rules. 

These revisions address baseline actual 

emissions, actual-to-projected-actual 

applicability tests, and PALs. 

The State rule does not incorporate 

the portions of the Federal rules that 

were vacated by the DC Circuit Court, 

specifically, the clean unit provisions 

and the pollution control projects 

exclusion. Except for the items 

described above in Sections A through 

E, the revisions included in New York’s 

nonattainment NSR program are 

substantively the same as the 2002 NSR 

Reform Rules. As part of its review of 

the New York submittal, EPA performed 

a review of the proposed revisions and 

has determined that they are consistent 

with the program requirements for the 

preparation, adoption and submittal of 

implementation plans for New Source 

Review, set forth at 40 CFR 51.165, 

including the 2002 NSR Reform Rules. 

We note that New York State is 

required to submit a SIP revision to EPA 

as a result of the Implementation of the 

New Source Review (NSR) Program for 

Particulate Matter Less than 2.5 

Micrometers (PM2.5) which was 

published in the Federal Register on 

May 16, 2008. 73 FR 28321. This rule 

requires the States to adopt and submit 

plan revisions to their attainment and 

nonattainment NSR SIP that incorporate 

a number of requirements pertaining to 

PM2.5 within 3 years from the date EPA 

publishes the changes in the Federal 

Register. Consequently, New York State 

has until May 16, 2011 to submit the 

required PM2.5 changes to EPA. 

H. Technical Error and Other Issues 

There is a technical error in the 

revised Part 231. New York must 

address this technical error by adding 

the underlined words ‘‘equal or’’ as 

shown below. However, EPA is 

proposing to approve this regulation 

into the SIP with the interpretation 

listed below for this particular 

definition. Our interpretation, that the 

language should read as ‘‘equal or 

exceed,’’ is consistent with other 

sections of Part 231 which do use the 

term ‘‘equal or exceed’’ when dealing 

with applicable significant project 

threshold of a regulated NSR 

contaminant and manifest New York’s 

intention to apply the language in the 

Federal rules. 

From ‘‘Definitions’’ under 6 NYCRR 

Part 231–4.1(b)(31): 

(31) NSR major modification. Any 

modification of a major facility that would 


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equal or exceed the applicable significant 

project threshold of a regulated NSR 

contaminant in Table 3, Table 4, or Table 6 

of Subpart 231–13 of this Part; and would 

result in a significant net emissions increase 

of that contaminant from the major facility. 

(i) Any modification with a project 

emission potential for VOC or NOX that 

equals or exceeds the applicable significant 

project threshold or any net emissions 

increase at a major facility that is significant 

for VOC or NOX shall be considered 

significant for ozone. 

With respect to the creation of 

Emission Reduction Credits (ERCs), the 

revised 6 NYCRR Part 231 states that for 

NOX, PM10 or VOC emissions, ERCs 

must have physically occurred on or 

after November 15, 1990 but need not be 

contemporaneous. This November 15, 

1990 date is much earlier than the 

emission inventory base year that New 

York State uses for planning purposes 

which is the year 2002. EPA regulations 

require a State to include ERCs created 

in the years prior to the emission 

inventory base year in the future year 

attainment inventories. ERCs created 

between November 15, 1990 and 2002 

have been properly accounted for in the 

future year (projection) attainment 

inventories that are used to account for 

the reasonable further progress 

requirements. Therefore, EPA deems 

that the ERC meets the specific 

requirements from shutdowns and 

curtailments contained in 40 CFR part 

51, Appendix S, section IV.C.3. 

With respect to the creation of ERCs 

for PM2.5, 6 NYCRR Part 231 states that 

the ERCs must have physically occurred 

on or after April 5, 2005 but need not 

be contemporaneous. The year for the 

last New York State PM2.5 emission 

inventory is 2002. The April 5, 2005 

date is more stringent than the Federal 

requirement of using the emission 

inventory base year of 2002. Therefore, 

EPA is proposing to approve the 

provision with the April 5, 2005 date. 

I. Revisions to 6 NYCRR Part 200, 

‘‘General Provisions’’ and 6 NYCRR Part 

201, ‘‘Permits and Certificates’’ 

New York also made administrative 

changes to Parts 200 and 201 which 

reflect implementation of the Part 231 

provisions. The Part 200 amendments, 

specifically Subdivision 200.1(bl) was 

amended to clarify that for emergency 

power generating stationary internal 

combustion engines, the potential to 

emit will be based on a maximum of 500 

hours of operation per year per engine 

unless a more restrictive limitation 

exists in a permit or registration. A new 

subdivision 200.1(cl) was added to 

indicate that routine maintenance 

determinations are made on a case-bycase basis, taking into account the 

nature and extent of the activity and its 

frequency and cost. Section 200.9 was 

amended to include all Federal 

materials referenced in the proposed 

amendments to Part 231. Section 

200.10(a) was amended to reflect that 

the NYSDEC is no longer delegated 

responsibility for implementation of the 

Federal Prevention of Significant 

Deterioration (PSD) Program. 

New York’s amendments to Part 201 

revise the definition for ‘‘major 

stationary source or major source or 

major facility’’ at 6 NYCRR 201– 

2.1(b)(21). The definition will now 

encompass the term ‘‘major facility’’ and 

incorporate major facility and 

significant project thresholds for 

facilities emitting particulate matter or 

particles with an aerodynamic diameter 

less than or equal to a nominal 2.5 

micro-meters (PM2.5). EPA designated 

the New York City metropolitan area as 

nonattainment for the PM2.5 standard 

(70 FR 944). NNSR review is now 

required for new major facilities and 

major modifications to existing facilities 

that emit PM2.5 in significant amounts in 

the PM2.5 nonattainment area. 

Since the revisions to Parts 200 and 

201, including the new or revised 

definitions are consistent with Federal 

guidance, EPA is proposing to approve 

them into the New York SIP. It is 

important to note that EPA is proposing 

to approve only those revisions made to 

Part 200, specifically subparts 200.1, 

200.6, 200.7, and 200.9, as effective 

March 5, 2009, consistent with what has 

been previously approved into the 

Federally enforceable New York SIP. 

EPA is also proposing to approve those 

revisions to Part 201, specifically 

subpart 201–2, effective March 5, 2009, 

as it applies to the implementation of 

the Part 231 NSR permitting program. 

EPA is not proposing action on the 

revisions to section 200.10 since they 

are references to Federal standards and 

requirements and are therefore already 

Federally enforceable standards and 

requirements. 

J. Clean Air Act (CAA) Section 110(l) 

Section 110(l) of the CAA provides 

that ‘‘the Administrator shall not 

approve a revision of a plan if the 

revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress * * * or any other applicable 

requirement of this Act.’’ 

Approval of New York’s Revised Part 

231 into the SIP would not violate CAA 

section 110(l) with respect to either PSD 

or nonattainment NSR. 

1. PSD 

With respect to PSD, EPA determines 

that approval of New York’s regulations 

will not ‘‘interfere with * * * 

attainment or any other applicable 

requirement’’ of the statute. New York 

has never had a PSD SIP. As a result, the 

regulations currently in place in New 

York State are the Federal NSR Reform 

regulations. New York’s proposed SIP 

for PSD is no less stringent than the 

Federal program, and is in fact more 

stringent than the Federal program in a 

number of ways as discussed above in 

this proposal. Thus, approval of New 

York’s PSD regulations into the SIP will 

not interfere with any applicable 

requirement of the CAA. 

2. Nonattainment NSR (NNSR) 

EPA likewise determines that 

approval of New York’s proposed NNSR 

SIP also would not interfere with 

attainment, reasonable further progress 

or any other applicable requirement of 

the CAA. New York’s NNSR SIP 

approval dates back to July 1, 1980, well 

before the 1990 Clean Air Act 

Amendments. Since then, there have 

been many improvements in part D of 

the CAA, and these have been 

incorporated into New York’s revised 

Part 231. Thus, approval of New York’s 

new NNSR regulation into the SIP will 

add provisions that will support 

attainment or reasonable further 

progress. For example, the current 

NNSR SIP does not contain up-to-date 

offset ratios for VOCs and NOX

inasmuch as it predates the ozone 

transport region, and contains a 

threshold of 50 tons/year throughout the 

State for VOCs and NOX. New York’s 

revised Part 231 addresses these 

weaknesses. Furthermore, New York’s 

reasonable further progress (RFP) 

demonstration does not rely on this NSR 

rule but on other regulations, such as 

Reasonably Available Control 

Technology (RACT). 

K. Clean Air Act (CAA) Section 193 

Section 193 of the CAA specifically 

provides that ‘‘no control requirement in 

effect, or required to be adopted by an 

order, settlement agreement, or plan in 

effect before November 15, 1990, in any 

area which is a nonattainment area for 

any air pollutant may be modified after 

November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emissions 

reductions of such air pollutant.’’ 

As discussed in the preceding section, 

New York’s PSD and NNSR SIP 

provisions are more stringent than the 

applicable Federal regulations and the 

existing NSR SIP approved on July 1, 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 143 / Tuesday, July 27, 2010 / Proposed Rules 43897 

1980. Because the proposed SIP revision 

will result in equivalent or greater 

emission reductions, the proposed SIP 

revision is consistent with the 

requirements of section 193 of the CAA. 

IV. What action is EPA proposing to 

take? 

EPA is proposing to approve revisions 

to the New York SIP 6 NYCRR Part 200, 

6 NYCRR Part 201 and 6 NYCRR Part 

231 which became effective under NYS 

law on March 5, 2009, and was 

submitted by the State of New York to 

EPA on March 3, 2009. Specifically, 

EPA is proposing to approve subparts 

200.1, 200.6, 200.7, and 220.9, as 

effective March 5, 2009, and subpart 

201–2, as effective March 5, 2009, with 

the caveat that EPA is taking no action 

on the specific items identified in 

Section I of this proposal related to the 

Tailoring Rule thresholds. EPA will take 

action on these additional items after 

receiving New York’s letter, expected 

shortly. 

V. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the CAA and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on Tribal governments or preempt 

Tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: July 16, 2010. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2010–18365 Filed 7–26–10; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 10–1061; MB Docket No. 10–117; RM– 

11601] 

FM TABLE OF ALLOTMENTS, GRANTS 

PASS, OREGON 

AGENCY: Federal Communications 

Commission 

ACTION: Proposed rule. 

SUMMARY: This document sets forth a 

proposal to amend the FM Table of 

Allotments. The Commission requests 

comment on a petition filed by Three 

Rivers Broadcasting, LLC proposing the 

allotment of FM Channel 257A as the 

second commercial allotment at Grants 

Pass, Oregon. The channel can be 

allotted at Grants Pass in compliance 

with the Commission’s minimum 

distance separation requirements with a 

site restriction of 8.7 km (5.4 miles) west 

of Grants Pass, at 42–25–25 North 

Latitude and 123–26–25 West 

Longitude. See Supplementary 

Information infra. 

DATES: The deadline for filing comments 

is August 26, 2010. Reply comments 

must be filed on or before September 10, 

2010. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW, 

Washington, DC 20554. In addition to 

filing comments with the FCC interested 

parties should serve the petitioner, as 

follows: Casey McIntosh, Three Rivers 

Broadcasting, LLC, 2970 Ravenwood 

Drive, Grants Pass, Oregon 97527 

FOR FURTHER INFORMATION CONTACT: 

Deborah A. Dupont, Media Bureau, 

(202) 418–2180. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

10–117, adopted June 10, 2010, and 

released June 14, 2010. The full text of 

this Commission decision is available 

for inspection and copying during 

normal business hours in the FCC 

Reference Information Center (Room 

CY–A257), 445 12th Street, S.W., 

Washington, D.C. 20554. 

The complete text of this decision 

may also be purchased from the 

Commission’s copy contractor, Best 

Copy and Printing, Inc., 445 12th Street, 

SW, Room CY–B402, Washington, DC 

20554, 800–378–3160 or via the 

company’s website, http:// 

www.bcpiweb.com. 

This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of 1980 does not apply 

to this proceeding. 

Members of the public should note 

that from the time a Notice of Proposed 

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1204(b) for rules 

governing permissible ex parte contacts. 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1