
[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 95047-95050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31018]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2016-0478, FRL-9957-08-Region 2]


Approval and Promulgation of Implementation Plans; New York 
Prevention of Significant Deterioration of Air Quality and 
Nonattainment New Source Review; Infrastructure State Implementation 
Plan Requirements

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve revisions to the New York State Implementation Plan 
(SIP) amending existing nonattainment New Source Review (NNSR) and 
attainment New Source Review (Prevention of Significant Deterioration 
of Air Quality, PSD) program requirements that the New York State 
Department of Environmental Conservation (NYSDEC) submitted to EPA on 
October 12, 2011. Specifically, the SIP revision includes new 
requirements pertaining to the regulation of particulate matter with an 
aerodynamic diameter less than or equal to 2.5 micrometer 
(PM2.5) and the regulation of Greenhouse Gases (GHGs) under 
New York's Part 231, ``New Source Review for New and Modified 
Facilities;'' Part 201, ``Permits and Registrations;'' and amendments 
to Part 200, ``General Provisions,'' of Title 6 of the Official 
Compilation of Codes, Rules and Regulations of the State of New York (6 
NYCRR). The SIP revision will make the SIP consistent with existing 
federal requirements. The EPA is also taking final action to approve 
certain elements of New York SIP revisions submitted to demonstrate 
that the State meets the requirements of section 110(a)(1) and (2) of 
the Clean Air Act (CAA) for the 2008 lead (Pb), 2008 ozone, and 2010 
sulfur dioxide (SO2) national ambient air quality standards 
(NAAQS).

DATES: This rule is effective on January 26, 2017.

ADDRESSES: EPA has established a docket for this action under Docket ID 
number EPA-R02-OAR-2016-0478. All documents in the docket are listed on 
the http://www.regulations.gov Web site.

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; email 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 the background for this action?
II. What sections of New York's rules are we approving in this 
action?
III. What are EPA's responses to comments to EPA's proposal?
IV. What action is EPA taking?
V. Incorporation By Reference.
VI. Statutory and Executive Order Reviews.

I. What is the background for this action?

    On October 12, 2011, the New York State Department of Environmental 
Conservation (NYSDEC) submitted to EPA Region 2 a new set of revisions 
to the New York State Implementation Plan (SIP). This submittal 
consists of revisions to Title 6 of the New York Code of Rules and 
Regulations (6 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. New York undertook this rulemaking to comply 
with EPA's May 16, 2008 NSR final rule for the regulation of 
particulate matter with an aerodynamic diameter less than or equal to 
2.5 micrometers (PM2.5). Also, the revisions implement EPA's 
October 20, 2010 final rule that establishes the PM2.5 
increments, significant impact levels, and significant monitoring 
concentrations. New York's rulemaking implements PM2.5 
provisions that were not previously included in the November 17, 2010 
EPA SIP approval of Part 231. This SIP revision also incorporates 
provisions that conform to EPA's June 3, 2010 final rule for Greenhouse 
Gases (GHGs) under its PSD and Title V programs, establishing major 
source applicability threshold levels for GHG emissions and other 
conforming changes such as the establishment of global warming 
potential values for calculating CO2 equivalents under New 
York's PSD and Title V programs. In today's action, the EPA is taking 
final action to approve those revisions by issuing a full approval, as 
proposed (see 81 FR 63448 (September 15, 2016)).
    The EPA is also taking action to approve certain elements of New 
York SIP revisions as meeting CAA section 110(a) requirements for the 
2008 Pb, 2008 ozone, and 2010 SO2 NAAQS. NYSDEC submitted a 
SIP for the 2008 Pb NAAQS on October 13, 2011, as supplemented on 
February 24, 2012, and for the 2008 ozone NAAQS on April

[[Page 95048]]

4, 2013 and the 2010 SO2 NAAQS on October 3, 2013.
    Under CAA sections 110(a)(1) and (2), states are required to submit 
SIPs that provide for the implementation, maintenance and enforcement 
of the NAAQS. The EPA refers to these types of SIP submissions as the 
``infrastructure'' SIPs. States must make infrastructure SIP 
submissions within 3 years after the promulgation of a new or revised 
NAAQS. On November 12, 2008 (73 FR 66964), EPA promulgated a revised 
NAAQS for Pb, which is 0.15 micrograms per cubic meter of air ([mu]g/
m\3\) maximum not to be exceeded on a rolling 3-month average. On March 
27, 2008 (73 FR 16436), EPA revised the level of the 8-hour ozone NAAQS 
from 0.08 parts per million (ppm) to 0.075 ppm. On June 22, 2010 (75 FR 
35520), EPA promulgated a revised NAAQS for SO2 at a level 
of 75 ppb, based on a 3-year average of the annual 99th percentile of 
1-hour daily maximum concentrations.
    This final action pertains only to the portions of the 
infrastructure SIPs submitted for the 2008 Pb, 2008 ozone, and 2010 
SO2 NAAQs pertaining to CAA sections 110(a)(2)(C); 
110(a)(2)(D)(i)(II) prong 3 (PSD); and 110(a)(2)(J). The reader is 
referred to the September 15, 2016 proposed rulemaking for a detailed 
discussion of New York's submittals and EPA's review and proposed 
actions.

II. What sections of New York's rules are we approving in this action?

    With respect to 6 NYCRR Part 200, the EPA is taking final action to 
approve into the New York SIP revisions to Section 200.1, specifically, 
subparts 200.1(bj), 200.1(bl), 200.1(cj), 200.1(cu) through 200.1(cv), 
together with revisions to Section 200.9, Table 1, as delineated in the 
New York October 12, 2011 submittal to EPA.
    With respect to 6 NYCRR Part 201, the EPA is taking final action to 
approve into the New York SIP revisions to subpart 201-2.1(b)(21) with 
the exception of changes to the definitions in subparts 201-
2.1(b)(21)(i) and 201-2.1(b)(21)(v) which were withdrawn by the NYSDEC.
    With respect to 6 NYCRR part 231, the EPA is taking final action to 
approve all of part 231 into the New York SIP except certain revisions 
to part 231 which were withdrawn by the NYSDEC. The withdrawn revisions 
which are not being approved into the New York SIP are, as identified 
in EPA's September 15, 2016 proposal, certain portions of subpart 231-
5.5(b)(3) and 231-6.6(b)(3), 231-10.1(d), 231-12.7 containing the 
Significant Impact Levels (SILs) for PM2.5, Section 231-13.5 
Table 5 containing the GHG major source thresholds for sources that are 
major for GHG only and subpart 231-12.4(a)(1) containing the 
PM2.5 Significant Monitoring Concentration (SMC) of 4 [mu]g/
m\3\. However, EPA approves New York's replacement of the SMC value 
with zero (0) until future regulatory changes are made.

III. What are EPA's responses to comments to EPA's proposal?

    In response to EPA's September 15, 2016 (81 FR 63448) proposed 
approval, the EPA received no comments during the public comment 
period.

IV. What action is EPA taking?

    The EPA is taking a final action to approve revisions of 6 NYCRR 
parts 200, 201, and 231 to the New York State Implementation Plan (SIP) 
as specified in Section II of this notice and submitted by the New York 
State Department of Environmental Conservation (NYSDEC) on October 12, 
2011, with the exception of the NYSDEC withdrawn items listed in 
Section II of this notice.
    EPA is also taking final action to approve New York's 
infrastructure SIP submittals for 2008 Pb, 2008 ozone, and 2010 
SO2 for CAA Section 110(a)(2) elements and sub-elements, as 
follows: 110(a)(2)(C), 110(a)(2)(D)(i)(II) prong 3, and 110(a)(2)(J).

V. Incorporation By Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of revised 
versions of 6 NYCRR Part 200, 6 NYCRR Part 201 and 6 NYCRR Part 231 
described in the proposed amendments to 40 CFR part 52 set forth below. 
Therefore, these materials have been approved by EPA for inclusion in 
the State Implementation Plan, have been incorporated by reference by 
EPA into that plan, are fully federally enforceable under sections 110 
and 113 of the CAA as of the effective date of the final rulemaking of 
EPA's approval, and will be incorporated by reference by the Director 
of the Federal Register in the next update to the SIP compilation.\1\ 
EPA has made, and will continue to make, these documents generally 
available electronically through http://www.regulations.gov and/or in 
hard copy at the appropriate EPA office (please contact the person 
identified in the For Further Information Contact section of this 
preamble for more information).
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    \1\ 62 FR 27968 (May 22, 1997)
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VI. 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, because the SIP is not approved to 
apply in Indian country located in the State, and EPA

[[Page 95049]]

notes that it will not impose substantial direct costs on tribal 
governments or preempt tribal law. Thus Executive Order 13175 does not 
apply to this action.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 27, 2017. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: November 22, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart HH--New York

0
2. In Sec.  52.1670:
0
a. The table in paragraph (c) is amended by revising four entries for 
``Title 6, Part 200, Subpart 200.1'', ``Title 6, Part 200, Subpart 
200.9'', ``Title 6, Part 201, Subpart 201-2.1(b)(21)'', and ``Title 6, 
Part 231''; and
0
b. The table in paragraph (e) is amended by:
0
i. Adding another entry titled ``Section 110(a)(2) Infrastructure 
Requirements for the 2008 ozone NAAQS'' at the end of the table; and
0
ii. Adding two entries titled ``Section 110(a)(2) Infrastructure 
Requirements for the 2008 Pb NAAQS'' and ``Section 110(a)(2) 
Infrastructure Requirements for the 2010 SO2 NAAQS'' at the 
end of the table.
    The additions read as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved New York State Regulations and Laws
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                                                             State       EPA approval
          State citation              Title/subject     effective date       date               Comments
----------------------------------------------------------------------------------------------------------------
Title 6, Part 200, Subpart 200.1.  General Provisions,        10/15/11        12/27/16  The word odor is removed
                                    Definitions.                                         from the Subpart
                                                                                         200.1(d) definition of
                                                                                         ``air contaminant or
                                                                                         air pollutant.''
                                                                                        Redesignation of non-
                                                                                         attainment areas to
                                                                                         attainment areas
                                                                                         (200.1(av)) does not
                                                                                         relieve a source from
                                                                                         compliance with
                                                                                         previously applicable
                                                                                         requirements as per
                                                                                         letter of Nov. 13, 1981
                                                                                         from H. Hovey, NYSDEC.
                                                                                        Changes in definitions
                                                                                         are acceptable to EPA
                                                                                         unless a previously
                                                                                         approved definition is
                                                                                         necessary for
                                                                                         implementation of an
                                                                                         existing SIP
                                                                                         regulation.
                                                                                        EPA is including the
                                                                                         definition of
                                                                                         ``federally
                                                                                         enforceable'' with the
                                                                                         understanding that (1)
                                                                                         the definition applies
                                                                                         to provisions of a
                                                                                         Title V permit that are
                                                                                         correctly identified as
                                                                                         federally enforceable,
                                                                                         and (2) a source
                                                                                         accepts operating
                                                                                         limits and conditions
                                                                                         to lower its potential
                                                                                         to emit to become a
                                                                                         minor source, not to
                                                                                         ``avoid'' applicable
                                                                                         requirements.
                                                                                        EPA is approving
                                                                                         incorporation by
                                                                                         reference of those
                                                                                         documents that are not
                                                                                         already federally
                                                                                         enforceable.
                                                                                        EPA approval finalized
                                                                                         at [Insert Federal
                                                                                         Register citation].
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                                                  * * * * * * *
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Title 6, Part 200, Subpart 200.9.  General Provisions,        10/15/11        12/27/16  EPA is approving
                                    Referenced                                           reference documents
                                    Material.                                            that are not Federally
                                                                                         enforceable.
                                                                                        EPA approval finalized
                                                                                         at [Insert Federal
                                                                                         Register citation].
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[[Page 95050]]

 
                                                  * * * * * * *
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Title 6, Part 201, Subpart 201-    Permits and                10/15/11        12/27/16  EPA is including the
 2.1(b)(21).                        Registrations,                                       definition of ``Major
                                    Definitions.                                         stationary source or
                                                                                         major source or major
                                                                                         facility'' with the
                                                                                         understanding that the
                                                                                         definition applies only
                                                                                         to provisions of Part
                                                                                         231.
                                                                                        Revisions are approved
                                                                                         except for changes to
                                                                                         the definitions in 201-
                                                                                         2.1(b)(21)(i) and 201-
                                                                                         2.1(b)(21)(v) withdrawn
                                                                                         by NYSDEC as per July
                                                                                         28, 2016 letter to EPA
                                                                                         Region 2.
                                                                                        EPA approval finalized
                                                                                         at [Insert Federal
                                                                                         Register citation].
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                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Title 6, Part 231................  New Source Review          10/15/11        12/27/16  Full approval except for
                                    for New and                                          certain revisions to
                                    Modified                                             231-5.5(b)(3), 231-
                                    Facilities.                                          6.6(b)(3), 231-10.1(d),
                                                                                         231-12.4(a)(1), 231-
                                                                                         12.7, and 231-13.5
                                                                                         Table 5 withdrawn by
                                                                                         NYSDEC as per July 28,
                                                                                         2016 NYSDEC letter to
                                                                                         EPA Region 2.
                                                                                        The PM2.5 Significant
                                                                                         Monitoring
                                                                                         Concentration (SMC) is
                                                                                         approved as 0 [mu]g/m3
                                                                                         in 231-12.4(a)(1).
                                                                                        EPA approval finalized
                                                                                         at [Insert Federal
                                                                                         Register citation].
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                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e) * * *

                           EPA-Approved Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographic or         New York
       Action/SIP element          nonattainment      submittal date   EPA approval date        Explanation
                                        area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)                Statewide........  04/04/2013.......  12/27/2016,        This action addresses
 Infrastructure Requirements                                            [Insert Federal    the following CAA
 for the 2008 ozone NAAQS.                                              Register           elements:
                                                                        citation].         110(a)(2)(C),
                                                                                           (D)(i)(II) prong 3,
                                                                                           and (J).
Section 110(a)(2)                Statewide........  10/13/11, and      12/27/2016,        This action addresses
 Infrastructure Requirements                         supplemented on    [Insert Federal    the following CAA
 for the 2008 Pb NAAQS.                              2/24/12.           Register           elements:
                                                                        citation].         110(a)(2)(C),
                                                                                           (D)(i)(II) prong 3,
                                                                                           and (J).
Section 110(a)(2)                Statewide........  10/03/2013.......  12/27/2016,        This action addresses
 Infrastructure Requirements                                            [Insert Federal    the following CAA
 for the 2010 SO2 NAAQS.                                                Register           elements:
                                                                        citation].         110(a)(2)(C),
                                                                                           (D)(i)(II) prong 3,
                                                                                           and (J).
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[FR Doc. 2016-31018 Filed 12-23-16; 8:45 am]
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