
[Federal Register: July 27, 2010 (Volume 75, Number 143)]
[Proposed Rules]               
[Page 43892-43897]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy10-30]                         

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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.

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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[dash]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

[[Page 43893]]

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 Sec.  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

[[Page 43894]]

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 non-EUSGUs 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.
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    \1\ EPA'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.
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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.

[[Page 43895]]

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

[[Page 43896]]

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-by-case 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,

[[Page 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

