[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Rules and Regulations]
[Pages 43956-43960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16939]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2020-0324, FRL-8832-02-R2]


Approval and Promulgation of Implementation Plans; New York; 
Ozone Season NOX Controls for Simple Cycle and Regenerative Combustion 
Turbines

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the New York State Implementation Plan (SIP) as a SIP-
strengthening measure that is expected to further control emissions of 
oxides of nitrogen (NO<INF>x</INF>) to contribute to attainment and 
maintenance of ozone standards. This SIP strengthening measure goes 
beyond what has already been approved as satisfying the RACT 
requirements for the 2008 ozone NAAQS. The EPA is approving a SIP 
revision of a New York regulation that lowers allowable NO<INF>x</INF> 
emissions from simple cycle and regenerative combustion turbines during 
the ozone season. The intended effect of this action is to approve 
control strategies that will reduce emissions and help New York State 
attain and maintain the national ambient air quality standards for 
ozone.

DATES: This final rule is effective on September 10, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R02-OAR-2020-0324. All documents in the docket are 
listed on the http://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly

[[Page 43957]]

available only in hard copy form. Publicly available docket materials 
are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Fausto Taveras, Environmental 
Protection Agency, 290 Broadway, New York, New York 10007-1866, at 
(212) 637-3378, or by email at <a href="/cdn-cgi/l/email-protection#44102532213625376a02253137302b042134256a232b32"><span class="__cf_email__" data-cfemail="da8ebbacbfa8bba9f49cbbafa9aeb59abfaabbf4bdb5ac">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
    The SUPPLEMENTARY INFORMATION section is arranged as follows:

Table of Contents:

I. What is the background for this action?
II. What comments were received in response to the EPA's proposed 
action?
III. What action is the EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. What is the background for this action?

    On February 26, 2021, the EPA published a Notice of Proposed 
Rulemaking that proposed to approve a revision to the New York SIP 
submitted by the State of New York on May 18, 2020. See 86 FR 11688. 
The SIP revision includes a newly-adopted regulation, Title 6 of the 
New York Code of Rules and Regulations (NYCRR), Subpart 227-3, ``Ozone 
Season Oxides of Nitrogen (NO<INF>x</INF>) Emission Limits for Simple 
Cycle and Regenerative Combustion Turbines'' (Subpart 227-3), meant to 
reduce NO<INF>x</INF> emissions from simple cycle and regenerative 
combustion turbines during the ozone season. New York's May 2020 SIP 
submittal applies to major sources of NO<INF>x</INF> as a SIP-
strengthening measure for New York's ozone SIP.
    The EPA is also approving the removal of New York's previous 6 
NYCRR Subpart 227-3, ``Pre-2003 Nitrogen Oxides Emissions Budget and 
Allowance Program'' (New York's 227-3 Trading Program Regulation) from 
New York's SIP.\1\ New York's 227-3 Trading Program Regulation 
contained a NO<INF>x</INF> emissions budget and allowance trading 
system that is no longer in effect and that New York repealed from the 
New York Code of Rules and Regulations on September 5, 2014.
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    \1\ In the February 26, 2021 Notice of Proposed Rulemaking 
(NPRM), the EPA mistakenly wrote that it was ``also proposing to 
approve into the SIP the new version of 6 NYCRR Subpart 227-3, 
``Pre-2003 Nitrogen Oxides Emissions Budget and Allowance Program'' 
(New York's 227-3 Trading Program Regulation).'' (Emphases added). 
The EPA, as stated above, intended to propose to remove this 
previous version of Subpart 227-3 from New York's SIP. The EPA's 
intention to remove this version from New York's SIP was made clear 
by, for example, the section of the NPRM entitled ``Removal of New 
York's Nitrogen Oxides Emissions Budget and Allowance Program (Ozone 
Control Periods 1999-2002)'' (86 FR at 11690-11691). The EPA 
received no comments on this issue. Because the agency's intention 
was made clear, it has determined the language in the NPRM provided 
adequate notice of EPA's intended proposal with respect to this 
provision. Thus, the EPA is finalizing the removal of New York's 
227-3 Trading Program Regulation from New York's SIP.
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    The specific details of New York's SIP submittals and the rationale 
for the EPA's approval action are explained in the EPA's proposed 
rulemaking and are not restated in this final action. For this detailed 
information, the reader is referred to the EPA's February 26, 2021 
proposed rulemaking. See 86 FR 11688.

II. What comments were received in response to the EPA's proposed 
action?

    In response to EPA's February 26, 2021 proposed rulemaking on New 
York's SIP revision, the EPA received four comments during the 30-day 
public comment period. The specific comments may be viewed under Docket 
ID Number EPA-R02-OAR-2020-0324 on the http://www.regulations.gov 
website.
    Comment 1: A Washington State citizen commenter supports the EPA's 
proposed approval of New York's SIP revision since ``. . . high levels 
of nitrogen oxides are extremely detrimental . . . and [the commenter 
believes] that it would be in the best interest of public health to 
lower the allowable levels of the nitrogen oxides allowed in NYC.''
    Response 1: The EPA acknowledges the commenter's support of the 
EPA's proposed rule.
    Comment 2: An anonymous citizen provided extensive comments 
regarding the establishment of the Clean Air Act and the impact of NOx 
emissions to the environment. The commenter voices support of the EPA's 
proposed approval since ``. . . these turbines would be beneficial when 
it comes to lowering nitrous oxide emissions during the warmer periods, 
and ozone seasons.''
    Response 2: The EPA acknowledges the commenter's support of the 
EPA's proposed rule.
    Comment 3: A New York State citizen provides extensive comments, in 
which the commenter asks if the COVID-19 pandemic has impacted studies 
concerning NOx. The commenter provides a range of data about COVID-19 
and its impacts globally and across the country.
    Response 3: The EPA has determined that this comment is outside the 
scope of our proposed action. This comment does not make specific 
claims about how EPA should modify its proposed action, and therefore 
the EPA will not provide a specific response to this comment.
    Comment 4: The Midwest Ozone Group (MOG) submitted comprehensive 
comments that urge the EPA to require New York to impose all emission 
controls for Simple Cycle Combustion Turbines (SCCTs) units by 2023, 
instead of the adopted 2025 final phase year. MOG stated that a 2023 
implementation will ``be consistent with the nonattainment obligations 
of the [New York Metropolitan Nonattainment Area, or] NYMA.'' MOG also 
provided details on how NOx emissions from New York's SCCTs adversely 
impact upwind states like Connecticut and argued that EPA's proposed 
approval fails to recognize the impact on those upwind states and the 
Good Neighbor Provisions of the Clean Air Act. In addition, MOG 
provided the following comments, and extensive details for each, as 
follows:
    1. In 2023, the only remaining ozone monitor modeled to show 
nonattainment in the Northeast is located in the Connecticut portion of 
the NYMA.
    2. It has been well-established that residual nonattainment in 
Connecticut and the NYMA is being caused by SCCT units in New York.
    3. EPA should not allow, therefore, New York to delay the 
implementation of those controls beyond the Moderate nonattainment date 
for the 2015 ozone NAAQS.
    MOG's comment letter also included: (1) Presentation slides 
distributed by the EPA on the analysis of ozone trends in the east in 
relation to interstate transport, (2) MOG's December 14, 2020 comment 
letter to the EPA regarding the proposal of the Revised Cross-State Air 
Pollution Rule Update for the 2008 Ozone NAAQS, and (3) a data analysis 
presentation conducted by the Stationary and Area Sources Committee on 
high emitting Electric Generating Units during High Electric Demand 
Days throughout states within the Ozone Transport Region. MOG referred 
to these attachments throughout its comment on EPA's proposed action.
    Response 4: The EPA reviewed NYSDEC's SIP revision to examine if 
similar comments were presented during the department's assessment of 
public comments for the proposal of Subpart 227-3. Representatives from 
the EPA, state agencies, environmental organizations, and sustainable 
energy organizations each submitted comments that requested NYSDEC to 
have the proposed 2025 NOx limits on SCCTs take effect sooner. In the 
EPA's case, this is because the EPA wanted the SIP-strengthening 
provision to begin as expeditiously as possible to enhance New York's 
ozone SIP. NYSDEC responded to the comments by stating

[[Page 43958]]

that it has consulted with stakeholders--including environmental 
justice organizations, environmental groups, impacted source owners, 
the NYISO, the Department of Public Service, and the New York State 
Energy Research and Development Authority--during the development of 
the regulation. NYSDEC stated that it chose the 2025 timeframe to take 
into account considerations of improving air quality and maintaining 
electric system reliability. NYSDEC has also factored in the time 
demands for permitting and implementing other requirements, such as 
stack testing, and believes that the compliance schedule in the 
regulation is appropriate. After review, the EPA concurs with NYSDEC's 
assessment because the compliance schedule will provide adequate timing 
for owners or operators of impacted SCCTs to retrofit control 
technology, determine compliance options, and replace or retire older 
units in order to comply with the more stringent emission limits. The 
EPA also agrees with NYSDEC that the chosen timeframe provides owners 
and operators of SCCTs designated as a reliability source, which 
represents a significant amount of the impacted SCCTs, an appropriate 
timeframe to comply with the control requirements of Subpart 227-3.
    Further, the EPA finds the 2025 timeframe is appropriate because it 
builds upon existing protections in other New York regulations 
applicable to SCCTs. For example, on July 12, 2013, the EPA published a 
final approval that revised New York's SIP for ozone concerning the 
control of NOx. See 78 FR 41846. The SIP revision consisted of 
amendments to Title 6 of the NYCRR, Subpart 227-2, ``Reasonably 
Available Control Technology (RACT) For Major Facilities of Oxides of 
Nitrogen (NOx).'' The purpose of that SIP revision was to impose more 
stringent emission limits on major stationary sources of NOx that 
contribute to regional and local nonattainment of the 1997 and 2008 
ozone standards. Included within this EPA-approved regulation are 
emission limits and system averaging for SCCTs that apply year-round. 
Units applicable to Subpart 227-3 already comply with federally 
approved presumptive RACT emission limits. And SCCTs that are subject 
to Subpart 227-3 must also comply with the provisions set in Subpart 
227-2 outside the ozone season.\2\ When the EPA published the final 
approval of New York's Subpart 227-2, the EPA agreed that the emission 
limits detailed for SCCTs were deemed as RACT NOx limits. See 78 FR 
41846, (July 12, 2013). The purpose of Subpart 227-3 is to incorporate 
additional emission requirements (beyond RACT NOx limits) for SCCTs 
during the ozone season only. The phased-in approach outlined within 
Subpart 227-3 does not create undue delay in emission reductions 
because applicable SCCTs comply with the EPA-approved NOx RACT limits 
detailed in Subpart 227-2 year-round. The emission limits and 
compliance schedule outlined in Subpart 227-3 will result in further 
NOx reductions throughout the NYMA as expeditiously as practicable. The 
EPA believes, therefore, that the additional emission requirements 
listed within Subpart 227-3 will strengthen New York's ozone SIP and 
help the state attain the 2008 and 2015 national ambient air quality 
standards for ozone.
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    \2\ Under 6 NYCRR Subpart 227-2, applicable owners or operators 
of gas-fired SCCTs must comply with a RACT NOx emission limit of 50 
ppmvd outside the ozone season. While owners or operators of oil-
fired SCCTs must comply with a RACT NOx limit of 100 ppmvd outside 
the ozone season. The NOx emission limits are on a part per million 
dry volume basis (ppmvd), corrected to 15% oxygen.
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III. What action is the EPA taking?

    The EPA is approving New York's SIP revision submittal dated May 
18, 2020, for purposes of incorporating 6 NYCRR Subpart 227-3, ``Ozone 
Season Oxides of Nitrogen (NOx) Emission Limits for Simple Cycle and 
Regenerative Combustion Turbines,'' with a state effective date of 
January 16, 2020. After evaluating Subpart 227-3 for consistency with 
the CAA, EPA regulations, and EPA policy, the EPA finds that the 
submission strengthens New York's ozone SIP and, as an added benefit, 
will help New York State attain and maintain the national ambient air 
quality standards for ozone.
    The EPA is also approving the removal of New York's previous 6 
NYCRR Subpart 227-3,'' Pre-2003 Nitrogen Oxides Emissions Budget and 
Allowance Program'', from New York's SIP. In addition to finding that 
New York's 227-3 Trading Program Regulation is no longer in effect and 
that New York repealed it from the New York Code of Rules and 
Regulations, the EPA has determined, as discussed in the proposed 
rulemaking (see 86 FR 11688), that New York's 227-3 Trading Program 
Regulation has been superseded by other state and federal regulations 
that required additional NOx ozone season emission reductions. As the 
EPA determined regarding New York's CAIR trading program rule (see 86 
FR 11688), the EPA does not believe that the removal of New York's 227-
3 Trading Program Regulation from New York's SIP will interfere with 
any applicable requirement concerning attainment and reasonable further 
progress, or any other applicable requirement of the NAAQS. And as 
discussed in the proposed rulemaking, New York's 227-3 Trading Program 
Regulation predates more stringent rules and tighter NOx ozone season 
budgets under the NOx SIP call, CAIR, and CSAPR trading programs, as 
well as New York NOx RACT rules; it is not applicable to the current 
federal or state regulatory framework. New York also does not rely on 
emission reductions from New York's 227-3 Trading Program Regulation in 
any of its nonattainment planning elements required under CAA sections 
110, 172, or 182 and the EPA no longer operates the NOx Budget Trading 
Program allowing for the allocation and trading of allowances.
    Moreover, the removal of New York's 227-3 Trading Program 
Regulation from New York's SIP will have no consequences for the 
attainment and maintenance of the NAAQS in any area, now or in the 
future. Consistent with CAA section 110(l), the EPA has determined that 
the removal of New York's 227-3 Trading Program Regulation will not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress, or any other applicable requirement of the 
NAAQS.
    Accordingly, the EPA finds that it is appropriate to approve the 
removal of New York's 227-3 Trading Program Regulation from the New 
York SIP.
    The EPA is approving New York's May 18, 2020 SIP submittal as it 
applies to major sources of NOx, as a SIP-strengthening measure for New 
York's ozone SIP.

IV. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of 6 NYCRR Part 
227-3, ``Ozone Season Oxides of Nitrogen (NOx) Emission Limits for 
Simple Cycle and Regenerative Combustion Turbines,'' the regulation 
described in the amendments to 40 CFR part 52 set forth below. EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov and at the EPA Region 2 Office (please 
contact the person identified in the For Further Information Contact 
section of this preamble for more information). Therefore, these 
materials have been approved by EPA for inclusion in New

[[Page 43959]]

York's SIP, have been incorporated by reference by EPA into that SIP, 
are fully federally enforceable under sections 110 and 113 of the CAA 
as of the effective date of the final rulemaking of EPA's approval, and 
will be incorporated by reference in the next update to the SIP 
compilation.\3\
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    \3\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews

    Under the CAA, 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 they meet the criteria of the CAA. 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:
    <bullet> Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735 (October 4, 1993)) and 13563 (76 FR 3821 (January 21, 2011));
    <bullet> Is not an Executive Order 13771 (82 FR 9339 (February 2, 
2017)) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255 (August 10, 1999));
    <bullet> Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 19885 
(April 23, 1997));
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355 (May 22, 2001));
    <bullet> 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
    <bullet> 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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249 (November 9, 2000)).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 12, 2021. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen Dioxide, Intergovernmental Relations, Ozone, 
Reporting and recordkeeping requirements, Volatile Organic Compounds.

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

    Dated: August 03, 2021.
Walter Mugdan,
Acting Regional Administrator, Region 2.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

0
2. In Sec.  52.1670, the table in paragraph (c) is amended by revising 
the entry ``Title 6, Part 227, Subpart 227-3'' to read as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (c) * * *

                                                    EPA-Approved New York State Regulations and Laws
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           State citation                   Title/subject               State effective date            EPA approval date               Comments
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                                                                      * * * * * * *
Title 6, Part 227, Subpart 227-3...  Ozone Season Oxides of       January 16, 2020...............  August 11, 2021 [Federal
                                      Nitrogen (NOx) Emission                                       Register page citation]
                                      Limits for Simple Cycle                                       EPA approval finalized at
                                      and Regenerative                                              [insert Federal Register
                                      Combustion Turbines.                                          citation].
 
                                                                      * * * * * * *
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[FR Doc. 2021-16939 Filed 8-10-21; 8:45 am]
BILLING CODE 6560-50-P


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