UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION II AIR PROGRAMS BRANCH

Technical Support Document 

 

EPA(s Notice of Proposed Rulemaking

New York State Implementation Plan Revision:

New York Reasonably Available Control Technology and Reasonably
Available Control Measures 

	August 2009

Table of Contents

Chapter

I. Submittal Summary  

II. Reasonable Available Control Technology

III. Reasonable Available Control Measures

I. Submittal Summary

After completing the appropriate public notice and comment procedures,
New York made a series of submittals in order to address the Act’s
8-hour ozone attainment.  On September 1, 2006, New York submitted its
state-wide 8-hour ozone reasonably available control technology (RACT)
State Implementation Plan (SIP), which included a determination that
many of the RACT rules currently contained in its SIP meet the RACT
obligation for the 8-hour standard.  On February 8, 2008, New York
submitted two comprehensive 8-hour ozone SIPs – one for the New York
portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT
nonattainment area, entitled, “New York SIP for Ozone – Attainment
Demonstration for New York Metro Area” and one for the Poughkeepsie
nonattainment area, entitled, “New York SIP for Ozone – Attainment
Demonstration for Poughkeepsie, NY Area”.  The submittals included the
2002 base year emissions inventory, projection year emissions,
attainment demonstrations, reasonable further progress plans, reasonably
available control measure (RACM) analysis, RACT analysis, contingency
measures, new source review and on-road motor vehicle emission budgets.
These SIP revisions were subject to notice and comment by the public and
the State addressed the comments received on the proposed SIPs before
adopting the plans and submitting them for EPA review and rulemaking
action.   

In addition to the previously mentioned 8-hour ozone SIP submittals, on
April 4, 2008, New York submitted to EPA a request for a voluntary
reclassification of the New York-Northern New Jersey-Long Island,
NY-NJ-CT 8-hour ozone nonattainment area from “moderate” to
“serious” pursuant to section 181(b)(3) of the Act.  

 II. Reasonably Available Control Technology

Note: This portion based on “New York State Implementation Plan (SIP)
for 8-Hour Ozone Reasonably Available Control Technology (RACT),”
September 1, 2006.  

A. BACKGROUND  

There are three 8-hour ozone moderate nonattainment areas located in New
York State, the New York-Northern New Jersey-Long Island, NY-NJ-CT
nonattainment area, the Poughkeepsie nonattainment area; and the
Jefferson County nonattainment area.  The New York portion of the New
York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area is
composed of the five boroughs of New York City and the surrounding
counties of Nassau, Suffolk, Westchester and Rockland.  This is
collectively referred to as the New York City Metropolitan Area or NYMA.
 The Poughkeepsie nonattainment area is composed of Dutchess, Orange and
Putnam counties.  On March 25, 2008 (73 FR 15672), EPA determined that
Jefferson County attained the 8-hour ozone standard. 

Volatile organic compounds (VOCs) and nitrogen oxides (NOx) in the
presence of sunlight can lead to the formation of ground-level ozone or
“smog”.  The Clean Air Act (Act) Sections 172(c)(1) and 182 require
areas that are designated at moderate or above for ozone non-attainment
to adopt reasonably available control technology (RACT).  Section
184(b)(1) of the Act requires that areas located in the Ozone Transport
Region (OTR), as is the entire state of New York, must implement RACT
with respect to all sources of VOCs in the state covered by a control
techniques guideline issued before or after the date of the enactment of
the Clean Air Act Amendments of 1990.

Therefore, New York must, at a minimum, adopt RACT level controls
state-wide for sources covered by a Control Techniques Guidelines (CTG)
document and for any major non-CTG source.  The following provides a
brief discussion of RACT and how it differs from other types of control
levels such as those for new sources.  RACT level controls is defined by
40 CFR 51.100(o) as devices, systems, process modifications, or other
apparatus or techniques that are reasonably available.  RACT is required
to take into account the social, environmental, and economical impact of
controls.  Because it takes economic impacts into consideration, a RACT
determination for one state does not necessarily define RACT for another
state.

RACT level controls apply to existing sources in non-attainment areas
and differs from the more stringent lowest achievable emission rate
(LAER) controls required for new sources in non-attainment areas.  LAER
is defined in CAA Section 171(3) and 40 CFR 51.165(a)(1)(xiii) as “the
most stringent emissions limitation which is contained in the
implementation plan of any state for such class or category of source,
unless the owner or operator of the proposed source demonstrate that
such limitations are not achievable; or … the most stringent emissions
limit which is achieved in practice by such class or category of
stationary sources.”

Best available control technology (BACT) controls apply to new major
sources in areas that have attained the national ambient air quality
standards and applies an emission limitation based on the maximum degree
of reduction taking into account energy, environmental, and economic
impacts and other costs.

One important distinction between RACT and LAER is that RACT is required
to take into account the economic impact of the controls.  Therefore, if
a certain type of emission control or emission limitation is determined
to be too costly compared to the amount of emission reduction it
achieves, that control might not be considered RACT. Also, as economic
factors may vary within a state and between different states, a control
technology or emission limitation designated as meeting RACT in one
location does not necessarily define RACT for another location.  In
contrast, LAER level controls are more heavily focused towards applying
the most stringent emission limitations achievable.

Section IV.G of EPA’s final rule to implement the 8-hour ozone
national ambient air quality standard (NAAQS), 70 FR 71612, November 29,
2005, discusses RACT requirements.  It states in part that where a RACT
SIP is required, SIPs implementing the 8-hour standard generally must
assure that RACT is met, either through a certification that previously
required RACT controls represent RACT for 8-hour implementations
purposes or through a new RACT determination. 

The preamble to the final rule further explains that “many areas
subject to the major source RACT requirement under the 8-hour ozone
standard have previously addressed the RACT requirement with respect to
the 1-hour ozone standard…. We believe that, in many cases, a new RACT
determination under the 8-hour standard would result in the same or
similar control technology as the initial RACT determination under the
1-hour standard because the fundamental control techniques, as described
in the CTGs and ACTs, are still applicable.”

It adds that “states and other interested parties should consider
available information that may supplement the CTG and ACT documents.  In
cases where additional information is presented, for example, as part of
notice-and-comment rulemaking on a RACT SIP submittal, states (and EPA)
would necessarily consider the additional data in reviewing what control
obligation is consistent with RACT.”

Therefore, in portions of 8-hour ozone nonattainment areas where major
sources or source categories were previously reviewed and controls
applied to meet the RACT requirement under the 1-hour standard, states
should review and, if appropriate, accept the initial RACT analysis as
meeting the RACT requirements for the 8-hour standard.  Absent data
indicating that the previous RACT determination is no longer
appropriate, the state need not submit in its SIP a new RACT requirement
for these sources.  In such cases, the state should submit a
certification as part of its SIP revision, with appropriate supporting
information, such as consideration of new data that these sources are
already subject to SIP-approved requirements that still meet the RACT
obligation.”  (70 FR 71654)

B. EPA EVALUATION

EPA evaluated the following elements of New York’s RACT SIP submittal.


Efforts to identify all source categories within the State requiring
RACT

Negative declarations where there are no facilities subject to a CTG

State rules that implement CTGs and ACTs,

Whether the State adopted rules are included in the SIP,

Results of New York’s analysis and commitments, and

Review of public comments and State response.

The following documents were also used in our review:

Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality
Standard (70 FR 71612; November 29, 2005).

Letter from William T. Harnett to Regional Air Division Directors, (May
18, 2006), “RACT Qs & As – Reasonably Available Control Technology
(RACT) Questions and Answers”.

State Implementation Plans, General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990 (57 FR 13498; April 16,
1992).

The following summarizes New York’s actions to address the above
elements and EPA’s evaluation of those actions.

1.  Efforts to identify all source categories within the State requiring
RACT

New York submitted a state-wide RACT assessment in a SIP revision dated
September 1, 2006.  In that submittal, New York evaluated its existing
RACT regulations which were adopted to meet the 1-hour ozone standard,
to ascertain whether the same regulations constitute RACT for the new
8-hour ozone NAAQS.  New York’s 8-hour ozone RACT SIP submittal is
based on the determination that RACT has been met either through a
certification that previously required RACT controls for the 1-hour
ozone standard represent RACT for 8-hour ozone implementation purposes
or, where necessary, through a new RACT reevaluation for certain
regulations or sources.  In making its 8-hour ozone RACT determination,
New York relied on EPA's RACT guidance (“Cost-Effective NOx RACT”
March 16, 1994), EPA's RACT Question and Answer document (May 18, 2006)
and New York's Air Guide 20, “Economic and Technical Analysis for
Reasonably Available Control Technology” (January 24, 1996). 
Accordingly, the basic framework for New York's RACT SIP determination
is described below:

Identify all source categories covered by Control Technique Guidelines
(CTG) and Alternative Control Technique (ACT) documents.

Identify applicable regulations that implement RACT.

Certify that the existing level of controls for the 1-hour ozone
standard equals RACT under the 8-hour ozone standard in certain cases.

Declare that sources covered by a CTG and ACT do not exist within the
state and/or that RACT is not applicable in certain cases.

Identify and evaluate applicability of RACT to individual sources not
covered by state-wide regulation.

Identify potential RACT revisions.

The counties in the NYMA (and part of Orange County) were previously
classified under the 1-hour ozone NAAQS as severe, requiring RACT, while
the remaining counties in the State were subject to RACT as part of a
moderate classification or as part of the Ozone Transport Region.  In
the NYMA and a portion of Orange County, the previous severe
classification resulted in a requirement for major sources to be defined
as those having emissions of 25 tons per year or more for either VOC or
NOx.  

In areas classified as moderate or areas located in the Ozone Transport
Region (which includes all of New York State) under the 8-hour ozone
standard, the definition for major sources in New York would have been
50 tons per year for VOC and 100 tons per year for NOx.  New York chose
to retain the 1-hour ozone plan emission threshold of 25 tons per year
in the NYMA and a portion of Orange County for purposes of the RACT
analysis which results in a more stringent evaluation of RACT.  The rest
of the State follows the moderate major source definition as previously
mentioned.  

2. Results of New York’s Analysis of RACT for Stationary Sources. 

New York certified that all RACT regulations with effective dates from
1996 to the date when the RACT analysis was performed (2006) are RACT
for the 8-hour ozone NAAQS because the associated economic feasibility
calculations are consistent with the ten-year amortization period for
control equipment in typical RACT analyses.  Additionally, based on the
review of current technologies, New York found no data indicating that
the existing levels of control for these source categories are no longer
RACT.  To determine RACT applicability for measures with an effective
date prior to 1996, New York performed a re-evaluation by using EPA's
guidance and comparing control measures to those currently enacted by
other 1-hour ozone nonattainment areas.  

a. CTGs and ACTs

New York reviewed its existing RACT regulations adopted under the 1-hour
ozone standard to identify sources categories covered by EPA's CTG and
ACT documents.  New York’s RACT SIP submittal lists the CTG and ACT
documents and corresponding State RACT regulations that cover the CTG
and ACT sources included in New York's emission inventory.  For major
non-CTG sources, the provisions in Title 6 of the New York Codes, Rules
and Regulations (6 NYCRR) Part 212 “General Process Emission
Sources” regulate RACT compliance.

New York has implemented RACT controls state-wide for the 53 CTGs and
ACTs that EPA has issued as of September 2006 to meet the requirements
of the Act.  Table 1 lists the RACT controls that have been promulgated
in 6NYCRR and the corresponding EPA SIP approval dates.



Table 1: New York Adopted RACT Regulations

NY Regulation	Title	EPA Approval Date

Part 205	Architectural and Industrial Maintenance Coatings	12/13/04, 69
FR 72118

Part 211	General Prohibitions	11/27/98, 63 FR 65559

Part 212	General Process Emission Sources	9/25/01, 66 FR 48961

Part 216	Iron and/or Steel Processes	7/20/06, 71 FR 41163

Part 220	Portland Cement Plants	Submitted but not approved into the SIP

Part 223	Petroleum Refineries	7/19/85, 50 FR 29382

Part 224	Sulfuric and Nitric Acid Plants	7/19/85, 50 FR 29382

Part 226	Solvent Metal Cleaning Processes	1/23/04, 69 FR 3240

Part 227-2	Reasonably Available Control Technology (RACT) for Oxides of
Nitrogen (NOx)	1/13/05, 70 FR 2358

Part 228	Surface Coating Processes	1/23/04, 69 FR 3240

Part 229	Petroleum and Volatile Organic Liquid Storage and Transfer
12/23/97, 62 FR 67006

Part 230	Gasoline Dispensing Sites and Transport Vehicles	4/30/98, 63 FR
23668

Part 232	Dry Cleaning	6/17/85, 50 FR 25079

Part 233	Pharmaceutical and Cosmetic Processes	12/23/97, 62 FR 67006

Part 234	Graphic Arts	12/23/97, 62 FR 67006

Part 236	Synthetic Organic Chemical Manufacturing Facility Component
Leaks	7/27/93, 58 FR 40059



The New York RACT SIP submittal contains a table (see Table 2 - RACT
Source Categories) listing all the CTG and ACT categories (53 categories
in total) and the corresponding State regulations that address the
requirements.  EPA had previously approved and incorporated into the SIP
all but Part 220 of the State regulations.

For many source categories, the existing New York rules go beyond the
recommendations contained in the CTG/ACT documents in terms of more
stringent emission limits and lower thresholds of applicability.  New
York identified some categories where controls may be more stringent
than the recommended levels contained in the CTG/ACT documents and these
are identified below.  Based on the September 1, 2006 RACT evaluation,
New York states that the existing RACT rules for the remaining CTG and
ACT categories met the RACT requirement for the 8-hour ozone NAAQS
implementation purposes.

EPA’s Evaluation

For many source categories, the existing New York rules go beyond the
recommendations contained in the CTG/ACT documents in terms of more
stringent emission rates or limitations and lower applicability
thresholds (that is, requirements apply to sources with lower emissions
than what was originally included in a CTG or ACT).  This is especially
true based on New York’s 8-hour classification of moderate where major
VOC sources would be defined as 50 tons per year (TPY) and major NOx
sources would be defined as 100 tons per year.  Based on the original
1-hour ozone levels in the NYMA and Lower Orange County, major VOC
sources were defined as those with emissions of 25 TPY and major NOx
sources were defined as those with emissions of 25 TPY.  However,
anti-back sliding provisions prohibit relaxing existing requirements and
the State is not changing any of these applicabilities.

EPA performed a spot check of New York’s rules against the applicable
CTGs, and rules from surrounding states.  From this review, we conclude
the New York rules meet RACT level controls and in some cases, go beyond
RACT.  While some CTGs may not have been revised since being issued, and
therefore controls in those CTGs may be argued as being old, a
comparison of emission limits and controls in the New York rules against
those found in other states did not generally uncover more stringent
controls or lower applicability levels being applied elsewhere. 
Therefore, for major sources of VOC and NOx, the existing rules start
out being more stringent that what would be required for a
classification of moderate under the 8-hour ozone NAAQS.

Part 220, "Portland Cement Plants" 

New York's Part 220 includes a "generic RACT" provision which requires
all applicable sources to submit compliance plans which identify RACT
for emissions of NOx from kilns. Owners and/or operators of kilns which
are not equipped with RACT must include a schedule for installation of
RACT in the compliance plan.  

EPA acknowledges that this is an acceptable way of implementing RACT
provided that the individual RACT determinations are submitted to EPA as
single source SIP revisions.  EPA would like to point out that generic
RACT regulations such as the existing Part 220 are not fully approvable
unless the State has submitted to EPA all the source-specific RACT
determinations pursuant to the particular rule and has submitted a
negative declaration that to its best knowledge, there are no remaining
unregulated sources (or only a de-minimis amount remain not submitted),
or the generic rule covers only a limited number of sources, with
emissions, in the aggregate, that are determined to be de-minimis.

b. Source Categories not Applicable in New York State

New York previously certified to the satisfaction of EPA (40 CFR
52.1683) that no sources are located in the nonattainment area of the
State that are covered by the following CTGs:  1) Natural Gas/Gasoline
Processing Plants; 2) Air Oxidation Processes at Synthetic Organic
Chemical Manufacturing Industries; and 3) Manufacture of High-Density
Polyethylene, Polypropylene, and Polystyrene Resins.  New York has
reviewed its emission inventory and emission statements as required
under 6 NYCRR 202-2, entitled, “Emission Statement” for stationary
sources and reaffirmed that either there are no sources within New York
State or that there are no sources within New York State that exceed the
applicability thresholds for the above CTGs.

EPA’s evaluation:

EPA agrees with New York’s findings and their negative declaration for
the above source categories.

c. Source-Specific RACT Determinations

The 8-hour ozone RACT analyses must address source-specific RACT as it
applies to a single regulated entity.  The source-specific RACT
determination applies to sources that have obtained facility-specific
emission limit or an alternative emission limit, i.e., a variance.  A
case-by-case RACT analysis may also be required for sources that are not
in an established source category covered by an existing state
regulation or addressed by a CTG.  New York's “Guide for the Economic
and Technical Analysis for Reasonably Available Control Technology”
outlines the process and conditions for granting source-specific RACT
variances.  Under the Act, these individually source-specific RACT
determinations need to be submitted by the State as a SIP revision and
EPA must approve it.  Therefore, New York included in Appendix D of its
September 1, 2006 RACT SIP submittal a listing of VOC and NOx source
facilities that are subject to RACT source-specific SIP revision under
the 1-hour ozone SIP and corresponding emission limits or regulations
governing the variances.  Consistent with the Act, on September 16,
2008, New York submitted to EPA a SIP revision that included most of the
source-specific RACT revisions identified in Appendix D of the RACT SIP
submittal.  

EPA’s evaluation:

EPA is performing its technical review of the September 16, 2008
submittal and will take separate rulemaking actions in the near future
for each of the source-specific determinations.  Included in New York's
RACT SIP and in the September 16, 2008 submittal is a list of specific
NOx and VOC sources which the Department certifies as either meeting
RACT for 8-hour ozone or which are no longer in operation. There are
some specific sources listed of those SIPs that are certified as meeting
RACT for 8-hour ozone which have not yet been submitted as a final SIP
revision to EPA for approval. New York should submit these
source-specific RACT determinations for EPA approval.

d. Additional Control Measures Needed for Attainment 

In some instances, New York has adopted regulations with emission limits
that are more stringent than those recommended by the CTGs and ACTs. 
For example, Part 205, “Architectural and Industrial Maintenance
Coatings,” Part 226, “Solvent Metal Cleaning Operations,” Part
228, “Surface Coating Processes” have each been adopted by the State
with more stringent limits or applicability than what was recommended by
the corresponding CTGs. 

In addition, included in New York’s February 8, 2008 8-hour Ozone SIP
was a list of additional control measures that are currently under
development by the State (Section 9, “New Stationary Source
Measures” of New York’s SIP).  The State committed to adopt
regulations applicable to the following source categories:  Adhesives
and Sealants, Consumer Products, Graphic Arts, Asphalt Formulation,
Asphalt Paving Production, Portland Cement Plants, Glass Manufacturing,
High Electric Demand Day, Distributed Generation, MACT and ICI Boilers
RACT.  In letters dated January 27, 2009 and June 23, 2009, New York
revised its schedules and commitments to adopt the new or revised
regulations relevant to most of these categories by further delaying
their adoption to a future date.  

EPA’s evaluation:

New York stated in its February 8, 2008 8-hour Ozone SIP, Section 12
“Reasonably Available Control Technology (RACT), ” that several
source categories were in the process of being evaluated by the Ozone
Transport Commission and New York and, as a result of this assessment,
will result in new controls. New controls in New York will be
implemented under the schedule of rule revisions described in Chapter 9.
 Chapter 9 of the New York SIP included the following schedule to
implement the control strategies identified by New York as RACT.  

Key Adoption Dates for New Stationary Source Measures



6 NYCRR Part	Rule Name	Proposal Published in State Register	Regulatory
Package to Environmental Board	File Regulation with Secretary of State
Regulation Effective

228, 235	Adhesives and Sealants	06-02-08	09-16-08	11-03-08	12-19-08

235	Consumer Products	06-02-08	09-16-08	11-03-08	12-19-08

234	Graphic Arts	06-02-08	09-16-08	11-03-08	12-19-08

241	Asphalt Formulation	06-02-08	09-16-08	11-03-08	12-19-08

243, 244, 245	Clean Air Interstate Rule (CAIR)	04-11-07	07-11-07
09-19-07	10-19-07

220-1	Portland Cement Plants	06-02-08	09-16-08	11-03-08	12-19-08

220-2	Glass Manufacturing	06-02-08	09-16-08	11-03-08	12-19-08

227-4	Asphalt Paving Production	06-02-08	09-16-08	11-03-08	12-19-08

227-2, 227-3	ICI Boilers RACT	06-02-08	09-16-08	11-03-08	12-19-08

200	MACT	06-02-08	09-16-08	11-03-08	12-19-08

222	Distributed Generation	06-02-08	09-16-08	11-03-08	12-19-08

227-2	HEDD	06-15-08	12-15-08	06-01-09	06-01-09



In letters dated January 27, 2009 and June 23, 2009, New York revised
its schedules and commitments to adopt the new or revised regulations
relevant to most of these categories by further delaying their adoption
to a future date.  The June 23, 2009 letter included the following
schedule:



NYSDEC 8-Hour Ozone Rules – Rulemaking Schedule



6 NYCRR Part	Rule Name	

Submit to GORR	Proposal Published in State Register	Regulatory Package
to Environmental Board	File Regulation with Secretary of State
Regulation Effective

212.101	Asphalt Production	07/2009	09/2009	12/2009	01/2010	02/2010

220-1	Portland Cement Plants	07/2009	09/2009	01/2010	02/2010	03/2010

220-2	Glass Manufacturing	07/2009	09/2009	01/2010	02/2010	03/2010

227-22	NOx RACT	07/2009	09/2009	01/2010	02/2010	03/2010

228	Adhesives and Sealants	07/2009	09/2009	12/2009	01/2010	02/2010

2344	Graphic Arts	07/2009	09/2009	12/2009	01/2010	02/2010

235	Consumer Products	5/8/2009	06/2009	09/2009	10/2009	11/2009

239	Portable Fuel Container	9/11/2008	10/2008	06/2009	07/2009	08/2009

2413,4,5	Asphalt Formulation	07/2009	09/2009	12/2009	01/2010	02/2010



1 Formerly 227-4 in the ozone SIP submission

2 HEDD in the ozone SIP submission is part of NOx RACT

3 Formerly 211 in the ozone SIP submission

4 CTG-based revisions

5 Revisions to Part 211 will also be necessary and are provided with
this letter

EPA agrees with New York’s assessment that the types of controls that
would be applied through the implementation of new or revised
regulations (discussed in Section 9, “New Stationary Source
Measures,” of New York’s February 8, 2008 Ozone SIP), represent
RACT.  

Section 110(a)(2) of the Act requires that “each implementation plan
submitted by a state under this Act shall be adopted by the state after
reasonable notice and public hearing.  Each such plan shall—(A)
include enforceable emission limitations and other control measures,
means, or techniques (including economic incentives such as fees,
marketable permits, and auctions of emissions rights), as well as
schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of this Act.” 
Therefore, the control measures identified by New York as needed for
reasonable further progress and attainment should have been adopted and
submitted to EPA by the June 15, 2007 SIP due date (40 CFR 51.908(a),
and (c)). 

In addition, based on New York’s June 23, 2009 commitment letter, in
most cases the revised rule adoption schedule is pushed back by 14
months.  New York should accelerate its rulemaking process and adopt
control measures prior to the commitment date of March 2010 for the RACT
measures that have been identified and committed to by New York in order
to achieve reasonable further progress and attainment of the 8-hour
ozone standard as expeditiously as practicable and provide for cleaner
air for the public.  

3.  EPA’s Conclusions

In summary, EPA believes the RACT SIP analysis performed by New York is
reasonable and demonstrates that their rules meet RACT with the
exception of those source categories identified by New York that are
currently being proposed for revisions.

As discussed above, public comments were received on the RACT SIP
analysis and New York considered all of them before submitting the RACT
evaluation.  We further believe that as part of New York’s rule
development process to review emission controls and limits not only in
the CTGs/ACTs but also in other States, New York rules meet or exceed
RACT level controls.   However, New York must fulfill the commitments to
the rulemaking for the source categories it identified where RACT is
different from the existing rules.

EPA has reviewed the State’s RACT analysis and has determined that the
state-wide RACT analysis submitted on September 1, 2006 and supplemented
on September 16, 2008 and February 8, 2008, does not adequately address
the RACT requirement consistent with sections 172(c)(1), 182(b)(2) and
182(f) of the Act, as interpreted in EPA’s regulations, guidance and
policies.  EPA’s determination is based on the fact that New York has:

not adopted all RACT measures identified by the State as part of New
York’s RACT SIP submitted on September 1, 2006 and supplemented on
September 16, 2008 and February 8, 2008;

missed commitments to adopt all RACT measures according to schedules
contained in New York's RACT SIP submitted on September 1, 2006 and
supplemented on September 16, 2008 and February 8, 2008.  The February
8, 2008 SIP submittal included a schedule that identified that all new
or revised control measures would be adopted by December 2008.  (In a
letter dated June 23, 2009, New York has subsequently revised that
schedule and committed to propose all of those measures by September
2009 and adopt them by March 2010);  

not adopted the necessary control measures to expedite attainment of the
8-hour ozone standard consistent with EPA’s policy on for a voluntary
reclassification request (see 70 FR 71631). 

Therefore, New York’s state-wide RACT SIP is not approvable, including
the RACT assessment for the NYMA.  EPA encourages New York to accelerate
its rulemaking process and adopt control measures prior to the
commitment date of March 2010 for the RACT measures that have been
identified and committed to by New York in order to achieve reasonable
further progress and attainment of the 8-hour ozone standard as
expeditiously as practicable and provide for cleaner air for the public

II. Reasonably Available Control Measures (RACM) Analysis

A. BACKGROUND

Pursuant to section 172(c)(1) of the Act, states are required to
implement all Reasonably Available Control Measures (RACM) as
expeditiously as practicable.  Specifically, section 172(c)(1) states:
“In general – Such plan provisions shall provide for the
implementation of all reasonably available control measures as
expeditiously as practicable (including such reductions in emissions
from existing sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available control technology) and
shall provide for attainment of the national primary ambient air quality
standards.”

Furthermore, in EPA’s Phase 2 Rule, EPA describes how states must
include with their attainment demonstration a RACM analysis (70 FR
71659). The purpose of the RACM analysis is to determine whether or not
reasonably available control measures exist that would advance the
attainment date for nonattainment areas.  Control measures that would
advance the attainment date are considered RACM and must be included in
the SIP.  RACM are necessary to ensure that the attainment date is
achieved “as expeditiously as practicable.”

RACM is defined by the EPA as any potential control measure for
application to point, area, on-road and non-road emission source
categories that meets the following criteria:

The control measure is technologically feasible

The control measure is economically feasible

The control measure does not cause “substantial widespread and
long-term adverse impacts”

The control measure is not “absurd, unenforceable, or impracticable”

The control measure can advance the attainment date by at least one
year.

RACM differs from RACT in that RACM applies to all source categories and
RACT applies to only stationary sources.

1. New York’s Efforts to identify all sources of RACM.

The Ozone Transport Commission staff and member States, including New
York, formed and participated in several workgroups to identify and
evaluate candidate control measures that could be used to demonstrate
attainment of the 8-hour ozone NAAQS.  Initially, the workgroups
compiled and reviewed a list of approximately 1,000 candidate control
measures.  These control measures were identified through published
sources such as EPA's CTGs, National Association of Clean Air Agencies
(NACAA) “Menu of Options” documents, the AirControlNET database,
emission control initiatives in member States as well as other States
including California, state/regional consultations, and stakeholder
input.  The workgroups evaluated data regarding emissions benefits,
cost-effectiveness (economic feasibility) and implementation issues
(technological feasibility) to develop a preliminary list of 30
candidate control measures to be considered for more detailed analysis. 
These measures were selected to focus on the pollutants and source
categories that are thought to be the most effective in reducing ozone
levels in the Northeastern and Mid-Atlantic regions.  The document
“Identification and Evaluation of Candidate Control Measures - Final
Technical Support Document,” dated February 28, 2007, is included in
New York’s February 8, 2008 ozone SIP revisions as an Appendix as
supporting documentation of the process and product of the workgroups.

Based on the analysis conducted by the workgroups, the Commissioners of
the Ozone Transport Commission recommended that states consider
reductions from the following source categories:  Consumer Products,
Portable Fuel Containers, Adhesives and Sealants Applications, Diesel
Engine Chip Reflash, Cutback and Emulsified Asphalt Paving, Asphalt
Production Plants, Cement Kilns, Glass Furnaces, Industrial, Commercial
and Institutional (ICI) Boilers, Regional Fuels.

2. Results of New York’s RACM Analysis.

With the exception of Diesel Engine Chip Reflash and Regional Fuels, New
York is developing new or revised regulations for all of the source
categories recommended by the Commissioners of the Ozone Transport
Commission that will provide for the implementation of all RACM and
attainment of the 8-hour ozone standard as expeditiously as practicable.
 New York State determined that these measures represent RACM as they
are reasonably available and can be expected to advance the attainment
date and contribute to RFP.  These measures, referred to as “Beyond On
The Way” measures in the attainment modeling scenarios for the New
York-Northern New Jersey-Long Island, NY-NJ-CT 8-hour ozone
nonattainment area, are anticipated to provide an additional 1 to 2
parts per billion reduction benefit in the projected 2009 ozone design
values beyond what was projected for “On The Books / On the Way”
measures as detailed in the attainment modeling section of New York’s
February 8, 2008 8-hour ozone SIP submittal.

EPA’s evaluation.

On April 4, 2008, New York submitted to EPA a request for a voluntary
reclassification of the New York-Northern New Jersey-Long Island,
NY-NJ-CT 8-hour ozone nonattainment area from “moderate” to
“serious” pursuant to section 181(b)(3) of the Act.  At this time,
EPA is continuing to review New York’s request for a voluntary
reclassification of the New York-Northern New Jersey-Long Island,
NY-NJ-CT 8-hour ozone nonattainment area and plans to address New
York’s request including the RACM requirement associated with a
reclassification of “moderate” to “serious” in a separate
proposed action in the near future.

The State is proceeding with developing several of the additional
measures identified by the Ozone Transport Commission as part of its
RACT and RACM control program.  These measures are needed for emission
reductions to reach attainment as identified and included in the
“Beyond On The Way” attainment modeling scenarios for the NYMA.  EPA
has reviewed New York’s RACM and EPA agrees with New York that there
are no RACM that can be adopted in time to advance the moderate area
attainment date of 2010 for the NYMA.  However, EPA has determined that
New York’s RACM analysis is not approvable because New York has not
adopted all of the RACM identified and committed to by the State as
reasonably available for assisting to reach attainment as expeditiously
as practicable.  EPA’s concerns with New York’s RACM analysis are
the same as the concerns with New York’s RACT SIP discussed earlier.

 Information available at EPA's technology transfer network:
http://cfpubl.epa.gov/rblclhtm/bl02.cfm

 Serious and Severe Ozone Nonattainment areas: Information on emissions,
control measures adopted or planned and other available control
measures. EPA, November 1999

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