Approval and Promulgation of Implementation Plans; Reasonably Available Control Technology for Oxides of Nitrogen for the State of New York

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY35-1-200, FRL-6518-5]

Approval and Promulgation of Implementation Plans; Reasonably

Available Control Technology for Oxides of Nitrogen for the State of

New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes approval of revisions to the New York State

Implementation Plan (SIP) for ozone. The State submitted this portion

of the implementation plan to satisfy Clean Air Act (the Act)

requirements for adoption of rules for the application of reasonably

available control technology (RACT) for oxides of nitrogen

(NOX) in the entire State. The intended affect of this SIP

revision is to reduce emissions of NOX in order to help

attain the national ambient air quality standard for ozone.

DATES: Written comments must be received on or before February 4, 2000.

ADDRESSES: All comments should be addressed to:

Raymond Werner, Acting Chief, Air Programs Branch, Environmental

Protection Agency, Region II Office, 290 Broadway, 25th Floor, New

York, New York 10007-1866.

Copies of the State submittal and other information are available

at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region II Office, Air Programs

Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.

New York State Department of Environmental Conservation, Division

of Air Resources, 50 Wolf Road, Albany, New York 12233.

FOR FURTHER INFORMATION CONTACT: Ted Gardella, Air Programs Branch,

Environmental Protection Agency, 290 Broadway, 25th Floor, New York,

New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA proposing today?

II. Why is EPA proposing approval of New York's SIP revisions?

III. What are EPA's requirements for NOX RACT?

IV. What do New York's SIP revisions contain?

A. SIP revision dated January 20, 1994

B. SIP revision dated April 29, 1999

V. What sources does New York's NOX RACT regulation

affect?

VI. What exemptions does New York's regulation allow?

VII. Were there any approvability issues with New York's

NOX RACT regulation and, if so, how were they resolved?

A. Case-by-Case RACT Determinations

B. Certain Permitting Situation

C. Repowering Compliance Option

VIII. What are EPA's conclusions?

IX. Administrative requirements

I. What Action Is EPA Proposing Today?

EPA proposes approval of New York's revisions to the State

Implementation Plan (SIP) which New York submitted to EPA on January

20, 1994 and April 29, 1999. The January 20, 1994 submittal includes

New York's Subpart 227-2, entitled ``Reasonably Available Control

Technology (RACT) for Oxides of Nitrogen (NOX),'' for

statewide implementation of New York's NOX RACT

requirements, as well as revisions to Part 200, entitled ``General

Provisions,'' Part 201, entitled ``Permits and Certificates,'' and

Subpart 227-1, entitled ``Stationary Combustion Sources.'' The April

29, 1999 submittal includes amendments to Subpart 227-2. EPA proposed

action on other portions (Part 200, Subpart 227-1 and Subpart 227-3) of

the April 29, 1999 submittal in a Federal Register notice published on

October 14, 1999.

II. Why Is EPA Proposing Approval of New York's SIP Revisions?

EPA has evaluated the SIP revisions that New York submitted for

consistency with the Clean Air Act (the Act), EPA guidelines and EPA

policy. EPA has determined that New York's SIP revisions dated January

20, 1994 and April 29, 1999 meet all requirements and, therefore, EPA

proposes approval of New York's SIP revisions to implement and enforce

NOX RACT requirements statewide.

III. What Are EPA's Requirements for NOX RACT?

The air quality planning requirements for the reduction of

NOX emissions through RACT are set out in section 182(f) of

the Act. EPA describes the section 182(f) requirements in a

[[Page 422]]

document, ``State Implementation Plans; Nitrogen Oxides Supplement to

the General Preamble; Clean Air Act Amendments of 1990 Implementation

of Title I; Proposed Rule,'' published November 25, 1992 (57 FR 55620).

Refer to the November 25, 1992 document for detailed information on the

NOX requirements. Also refer to additional guidance

memoranda that EPA released subsequent to the NOX

Supplement. The additional guidance includes: EPA publication EPA-452/

R-96-005 (March 1996) entitled ``NOX Policy Documents for

The Clean Air Act of 1990''; EPA's policy memorandum on the approval

options for generic RACT rules submitted by States (November 1996);

EPA's draft system-wide averaging trading guidance (December 1993);

EPA's publications of ``Alternative Control Technique Documents'' which

are technical documents identifying alternative controls for most

categories of stationary sources of NOX; and other related

EPA policy and guidance documents.

The EPA has defined RACT as the lowest emission limitation that a

particular source is capable of meeting by the application of control

technology that is reasonably available considering technological and

economic feasibility (44 FR 53762, September 17, 1979).

The Act requires that states include requirements, where

practicable, for major stationary sources to include NOX

RACT controls by May 31, 1995. Section 182(f) of the Act requires

statewide application of the NOX RACT requirements.

IV. What Do New York's SIP Revisions Contain?

The technical support document, located in the official file,

includes a full description and detailed discussion of New York's SIP

submittals and revisions. The technical support document for this

proposed action is available from the EPA contact listed above in the

ADDRESSES section. The following is a summary of New York's submittals.

A. SIP Revision Dated January 20, 1994

New York held public hearings in April 1993 on its NOX

RACT plan. Following the public hearings and the comment period, New

York adopted the plan on January 19, 1994. On January 20, 1994, New

York submitted the plan to EPA as a revision to the SIP. EPA reviewed

the plan to determine completeness in accordance with criteria set out

at 40 CFR part 51. On April 15, 1994, EPA found the submittal to be

administratively and technically complete. New York's January 20, 1994

SIP revision contains the following:

1. Subpart 227-2, New York's NOX RACT regulation, as the

enforceable mechanism which includes: a list of the affected sources;

definitions; compliance plan requirements; control requirements

including emission limits; compliance options for fuel switching,

system-wide averaging, alternative RACT, and repowering; testing,

monitoring, and reporting requirements;

2. State rule Part 200 which was amended to add new definitions and

emission testing requirements;

3. State rule Part 201 which revises exemptions for certain sources

so that those units which have the potential to be a major stationary

source of NOX are no longer categorically exempted from

permit and certificate requirements;

4. State rule Subpart 227-1 which contains administrative

revisions;

5. Records from the Public Hearings; and

6. The State's response to public comments.

B. SIP Revision Dated April 29, 1999

The State proposed the April 29, 1999 SIP revision on September 16,

1998, requested public comments by November 9, 1998 and held public

hearings on the revision in November 1998. New York adopted the new and

amended rules on January 12, 1999 and submitted the SIP revision to EPA

on April 29, 1999. EPA determined the submittal administratively and

technically complete on June 18, 1999. New York's SIP revision dated

April 29, 1999 contains the following:

1. Amended Subpart 227-2. The Subpart 227-2 revisions include:

Removal of provisions which are no longer applicable; requirements for

submission of a new RACT compliance plan for sources subject to Subpart

227-3 (New York's NOX emissions budget and allowance

program); additional wording which clarifies New York's approval of low

NOX burners for mid-size boilers; corrections in the

monitoring provisions to require heat input weighted averaging instead

of arithmetic averaging; and requirements that New York submit

individual RACT determinations to EPA as SIP revisions.

2. New Subpart 227-3 and amendments to Part 200 and Subpart 227-1.

EPA has proposed approval of these three rules as published in a

Federal Register document on October 14, 1999 (see 64 FR 55667).

3. Records from the Public Hearings;

4. The State's response to public comments.

V. What Sources Does New York's NOX RACT Regulation

Affect?

In each SIP revision, New York's Subpart 227-2 specifies that

existing major stationary sources must apply RACT to control

NOX emissions. New York defines major stationary sources as

facilities with the potential to emit 25 tons per year NOX

in the severe nonattainment area--the New York City metropolitan area

and the lower Orange County metropolitan area--and 100 tons per year in

the remainder of the State. The New York City metropolitan area

includes the five counties of New York City and the counties of Nassau,

Suffolk, Westchester and Rockland. The lower Orange County metropolitan

area includes the towns of Blooming Grove, Chester, Highlands, Monroe,

Tuxedo, Warwick, and Woodbury. New York identifies these major source

categories as follows: very large boilers, large boilers, mid-size

boilers, small boilers, combustion turbines, internal combustion

engines and other combustion sources. Subpart 227-2 provides a

definition of each source category. These provisions are consistent

with the Act and EPA guidance.

VI. What Exemptions Does New York's Regulation Allow?

Subpart 227-2 contains provisions allowing equipment and source

operations the following four exemptions:

1. Section 227-2.1 allows for exemptions if EPA determines by May

15, 1994 that NOX reductions would have no benefit to the

net ozone air quality. New York provides that source owners, as well as

the State, may petition the EPA for an exemption. This provision

conforms to section 182(f) of the Act. In its April 1999 submittal, New

York deleted this exemption because the May 1994 deadline is past. This

deletion however, does not prevent source owners from petitioning EPA

directly, at any time, since section 182(f) of the Act allows for such

petitions.

2. Section 227-2.3(a)(3) allows an exemption from the requirements

of Subpart 227-2 to sources that provided New York with a schedule to

cease operation by May 31, 1995. This provision is acceptable to EPA

since the Act requires compliance by that date.

3. Section 227-2.4(f)(3) allows an exemption to emergency power

generating units and other units that operate during emergency

situations less than 500 hours per year. This provision is consistent

with EPA guidelines and it also limits the number of operating hours of

exempted units.

[[Page 423]]

4. Section 227-2.4(g) exempts owners from submitting a RACT

determination for combustion installations with NOX

emissions at a de minimis level. This exemption is consistent with the

Act since New York's de minimis level of emissions are well below the

25 tons per year major threshold limit.

VII. Were There Any Approvability Issues With New York's

NOX RACT Regulation and, if So, How Were They Resolved?

The following three approvability issues relate to Subpart 227-2 as

submitted to EPA on January 20, 1994. There are no approvability issues

with the amendments to Subpart 227-2 which New York submitted on April

29, 1999. EPA has determined that the revision has resolved all issues

related to the approval of Subpart 227-2.

A. Case-by-Case RACT Determinations

Provisions within Subpart 227-2 establish a procedure for a case-

by-case determination of what represents RACT for an item of equipment

or source operation. This procedure is applicable if the major

NOX facility contains any source operation or item of

equipment of a category not specifically regulated in Subpart 227-2.

Case-by-case RACT determinations are contained in several sections of

Subpart 227-2 as follows: 227-2.4(a)(2), 227-2.4(b)(2), 227-

2.4(c)(1)(iii), 227-2.4(c)(1)(iv), 227-2.4(e)(3), and 227-2.4(g). EPA

refers to these case-by-case provisions as generic RACT provisions.

Subpart 227-2 requires that the owners and/or operators of an

affected facility submit a RACT proposal if they are not covered by

specific emission limitations. The New York RACT proposal requires that

owners/operators include a technical and economic feasibility analysis

of the possible alternative control measures. Subpart 227-2 provides

for New York to establish emission limits using a RACT determination

specific to the facility.

In addressing the approvability of New York's NOX RACT

generic provisions, EPA had the following two concerns with New York's

January 1994 submittal: (1) Subpart 227-2 did not require that the

State submit approved case-by-case RACT determinations as SIP revisions

for EPA approval, and (2) the State did not document the magnitude of

NOX emissions associated with the generic provisions and

whether they were significant or not. New York needed to address both

these concerns in order for EPA to propose full approval of generic

provisions, instead of conditional approval.

Regarding EPA's first approvability concern, section 110 of the Act

requires that a state adopt and submit, as SIP revisions after public

notice and the opportunity for public comment, enforceable emission

limitations and other control measures and techniques. Although

NOX RACT limitations and requirements that are included in a

permit are federally enforceable, under section 110 case-by-case RACT

determinations would not be federally approvable unless Subpart 227-2

required that such RACT determinations be submitted as SIP revisions

for EPA approval. New York satisfied section 110 of the Act when, in

its April 1999 SIP revision, New York amended Subpart 227-2 by adding

section 227-2.5(e), a new compliance option, that requires the

submittal of State approved case-by-case RACT determinations to EPA for

approval as SIP revisions. Although section 227-2.5(e) refers to all

but one of the State's case-by-case RACT determinations, New York has

indicated that this omission was a mistake and that it intends to

include reference to section 227-2.4(c)(1)(iii), the generic provision

for mid-size boilers that use alternative fuels, in its new amendments

to Subpart 227-2 which it anticipates will be proposed in its next SIP

revision in the fall of 1999. New York's amended April 1999 SIP

revision satisfies EPA's approvability concern with the State's January

1994 submittal.

EPA's second concern relates to whether EPA can approve Subpart

227-2's generic provisions. Generic provisions are those portions of a

regulation which require the application of RACT to an emission point,

but the degree of control is not specified in the rule and is to be

determined on a case-by-case basis taking technological and economic

factors into consideration. On November 7, 1996, EPA issued a policy

memorandum providing additional guidance for approving regulations

which contain these ``generic provisions.'' (Sally Shaver memorandum to

EPA Division Directors, ``Approval Options for Generic RACT Rules

Submitted to Meet the non-CTG VOC RACT Requirement and Certain

NOX RACT Requirements'').

EPA policy allows for the full approval of state generic RACT rules

prior to EPA approval of all major source RACT determinations provided

an analysis is completed that concludes that the remaining source RACT

determinations involve a de minimis level of NOX emissions.

Such an approval does not exempt the remaining sources from RACT;

rather it is a de minimis deferral of the approval of these case-by-

case RACT limits. In a letter dated April 27, 1999, New York provided

sufficient data for EPA to evaluate the de minimis level of

NOX emissions from generic sources in the State. Given the

State's data, EPA has determined that four percent of the

NOX emissions subject to RACT controls have either not yet

been submitted to EPA as SIP revisions or, if submitted, have not yet

been approved by EPA.1 EPA has determined this amount to be

de minimis. The four percent de minimis level includes sixteen

facilities which New York is required to submit as single source SIP

revisions of which seven have been submitted to EPA for approval as SIP

revisions. Therefore, EPA has determined that New York's NOX

RACT regulation conforms with EPA's policy regarding the approval of

generic RACT provisions or rules, thereby allowing EPA to propose

approval of Subpart 227-2. Section 227-2.5(e) requires New York to

submit the remaining case-by-case RACT determinations to EPA for

approval as SIP revisions.

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\1\ EPA guidance provides that where the non-approved RACT

requirements concern sources whose emissions represent less than 5%

of the 1990 stationary source NOX inventory, excluding

utility boilers, it may be appropriate to issue a full approval of

the generic RACT regulation.

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B. Certain Permitting Situation

The last sentence of section 227-2.3(a)(1) allows a facility with a

valid certificate to operate or permit to construct, i.e. permits, to

continue operating without implementing RACT until a new permit is

issued that specifies the RACT requirements. Therefore, section 227-

2.3(a)(1) potentially allows affected sources to continue operation,

under valid permits, without implementing RACT by May 31, 1995 which

would be a violation of the Act.

In its letter dated April 27, 1999, New York indicated that, to the

best of their knowledge, every source subject to Subpart 227-2 has

already received a permit. Furthermore, in the same letter, New York

committed to include all emission limits and requirements of Subpart

227-2 in all applicable permits within twelve months of EPA's final

approval of Subpart 227-2.

If EPA had acted on Subpart 227-2 soon after receiving the January

1994 submittal, we would have proposed disapproval because section 227-

2.3(a)(1) would potentially allow some sources to operate in violation

of the Act. However, since the State has confirmed in its recent letter

that essentially all permits have been issued to all affected sources,

a disapproval would have no practical effect at this

[[Page 424]]

time. Therefore, this issue is resolved to EPA's satisfaction.

C. Repowering Compliance Option

Section 227-2.5(c) allows a facility to comply with Subpart 227-2

by opting to repower. To do so, the owner/operator must, by December

31, 1994, enter into a federally enforceable permit wherein it commits

to permanently shut down and dismantle the boiler prior to May 15, 1999

and wherein it commits to repower. This option also requires

NOX emissions from the repowered unit to meet specific

emission limits that are more stringent than the State's presumptive

RACT limits.

We have determined that the State's repowering compliance option

does not fully satisfy EPA's guidance on repowering in that it does not

require a milestone schedule for repowering nor does it require RACT

measures during the interim period between May 31, 1995 and the date

the facility is due to repower. These omissions are not acceptable to

EPA. However, since the repowering option can no longer be applied,

resolution of the discrepancies between EPA guidance and the State's

regulation can have no practical effect because it's too late to

enforce interim RACT or milestone scheduling requirements established

by EPA guidance. The State has advised EPA that only one source in New

York has opted to repower. The State's emission limitations for this

option meets EPA requirements for repowering and will therefore be

enforceable when EPA approves Subpart 227-2.

VIII. What Are EPA's Conclusions?

EPA proposes approval of the two SIP revisions that implement New

York's NOX RACT Program throughout the State, regardless of

the nonattainment status. The first SIP revision, dated January 20,

1994, includes Subpart 227-2, and revisions to Parts 200 and 201, and

Subpart 227-1. The second SIP revision, dated April 29, 1999, includes

amendments to Subparts 227-2.

IX. Administrative Requirements

Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does

not involve decisions intended to mitigate environmental health or

safety risks.

Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. Accordingly, the requirements

of section 3(b) of Executive Order 13084 do not apply to this rule.

Executive Order 13132

Federalism (64 FR 43255, August 10, 1999) revokes and replaces

Executive Orders 12612 (Federalism) and 12875 (Enhancing the

Intergovernmental Partnership). Executive Order 13132 requires EPA to

develop an accountable process to ensure ``meaningful and timely input

by State and local officials in the development of regulatory policies

that have federalism implications.'' ``Policies that have federalism

implications'' is defined in the Executive Order to include regulations

that have ``substantial direct effects on the States, on the

relationship between the national government and the States, or on the

distribution of power and responsibilities among the various levels of

government.'' Under Executive Order 13132, EPA may not issue a

regulation that has federalism implications, that imposes substantial

direct compliance costs, and that is not required by statute, unless

the Federal government provides the funds necessary to pay the direct

compliance costs incurred by State and local governments, or EPA

consults with State and local officials early in the process of

developing the proposed regulation. EPA also may not issue a regulation

that has federalism implications and that preempts State law unless the

Agency consults with State and local officials early in the process of

developing the proposed regulation.

This proposed rule will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 13132.

Thus, the requirements of section 6 of the Executive Order do not apply

to this rule.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This proposed rule will not have a significant impact on

a substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under

the Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA,

[[Page 425]]

427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the proposed approval action does not

include a federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile organic compounds.

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

Dated: December 21, 1999.

William J. Muszynski,

Acting Regional Administrator, Region 2.

[FR Doc. 00-151 Filed 1-4-00; 8:45 am]

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