[Federal Register Volume 87, Number 106 (Thursday, June 2, 2022)]
[Rules and Regulations]
[Pages 33438-33441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11571]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2021-0572, FRL-9439-02-R2]


Approval and Promulgation of Implementation Plans; New York; 
Ozone and Particulate Matter Controls Strategies

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving several 
revisions to the New York State Implementation Plan (SIP) meant to 
result in emission reductions that will help attain and maintain the 
national ambient air quality standards (NAAQS) for particulate matter 
(PM) and ozone. These SIP revisions consist of amendments to several 
existing regulations outlined within New York's Codes, Rules, and 
Regulations that implement control measures for sources of PM and 
oxides of nitrogen (NOX). These actions are being taken in 
accordance with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on July 5, 2022.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R02-OAR-2021-0572. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Fausto Taveras, Environmental 
Protection Agency, Region 2, Air Programs Branch, 290 Broadway, New 
York, New York 10007-1866, at (212) 637-3378, or by email at 
[email protected].

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

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

I. What is the background for these actions?

    On January 28, 2022, the EPA published a Notice of Proposed 
Rulemaking that proposed to approve revisions to the New York SIP 
submitted by the State of New York on February 3, 2021 and October 15, 
2020. See 87 FR 4530. The SIP revisions include adopted revisions to 
three regulations, Title 6 of the New York Code of Rules and 
Regulations (NYCRR), Part 219, ``Incinerators'', and Part 222, 
``Distributed Generation Sources'', with state effective dates of March 
14, 2020, and March 25, 2020, respectively. New York also submitted 
attendant revisions to Part 200, Section 200.9, ``General Provisions, 
Referenced material''. These revisions are applicable statewide, with 
the exception of Part 222 which will only be applicable to sources 
located within the New York Metropolitan Nonattainment Area (NYMA).\1\ 
These revisions include additional control strategies that will reduce 
NOX and PMX emissions from major sources 
throughout the State. The EPA is approving New York's SIP submittals 
listed within this action as a SIP-strengthening measure for New York's 
ozone and PM SIP. The EPA is also approving New York's SIP submittal 
since it incorporates additional RACT/RACM rules for NOX at 
Municipal and Private Solid Waste Incineration Units.
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    \1\ The New York portion of the NYMA, is composed of the five 
boroughs of New York City and the surrounding counties of Nassau, 
Suffolk, Westchester, Rockland and the Shinnecock Indian Nation. See 
40 CFR 81.333.
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    The specific details of New York's SIP submittals and the rationale 
for the EPA's approval action are explained in the EPA's proposed 
rulemaking and are not restated in this final action. For this detailed 
information, the reader is referred to the EPA's January 28, 2022, 
proposed rulemaking. See id.

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

    In response to EPA's January 28, 2022 proposed rulemaking on New 
York's SIP revisions, the EPA received three comments during the 30-day 
public comment period. The specific comments may be viewed under Docket 
ID Number EPA-R02-OAR-2021-0572 on the https://regulations.gov website.

Comment 1 & 2

    Two public comments received on February 14, 2022, were submitted 
by one anonymous commenter. Both comments are substantially similar and 
support the EPA's proposed approval of New York's SIP revisions. Both 
comments state that the revisions to 6 NYCRR Part 219 and Part 222 are 
necessary to, ``. . . make sure that an increase in PM and 
NOX emissions are avoided.'' However, both comments also 
urge the EPA to reevaluate the Ozone levels outlined in the 2008 and 
2015 Ozone NAAQS due to the ever-changing environment and the growing 
population in the NYMA.

Response 1 & 2

    The EPA acknowledges the commenter's support of the EPA's proposed 
rule. The EPA also recognizes the commenter's request for the EPA to 
reevaluate and revisit the Ozone levels outline within the 2008 and 
2015 Ozone NAAQS. While this issue is outside the scope of the present 
action, we note that on December 23, 2020, the EPA announced a decision 
to retain, without changes, the 2015 Ozone NAAQS (December 23, 2020 
Decision). See 85 FR 87256. However, on October 29, 2021, the EPA 
announced that it will reconsider the December 23, 2020 Decision.\2\
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    \2\ See, https://www.epa.gov/ground-level-ozone-pollution/epa-reconsider-previous-administrations-decision-retain-2015-ozone.
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Comment 3

    The Midwest Ozone Group (MOG) submitted comments on February 28, 
2022, that urged the EPA to require New York to impose all emission 
controls for Distributed Generation Sources (DG Sources) units by 2023, 
instead of the adopted 2025 final phase year. MOG stated that a 2023 
implementation timeframe will be consistent with the nonattainment 
obligations of the NYMA. MOG also provided details on how 
NOX emissions from New York's DG Sources adversely impact 
upwind states like Connecticut and argued that the EPA's proposed 
approval fails to recognize the impact on those upwind states and the 
Good Neighbor Provisions

[[Page 33439]]

of the Clean Air Act. In addition, MOG provided the following comments, 
and extensive details for each, as follows:
    1. EPA has recognized the critical need to regulate NOX 
emissions from DG Sources units.
    2. In 2023, the only remaining ozone NAAQS nonattainment monitors 
in the Northeast are located in the Connecticut portion of the NYMA.
    3. It has been well-established that residual nonattainment in 
Connecticut and the NYMA is being caused by sources that include DG 
Sources units in New York.
    4. EPA should not allow New York to delay the implementation of 
those controls beyond the moderate nonattainment date for the 2015 
ozone NAAQS.
    MOG's comment letter also included: (1) Presentation slides 
distributed by the EPA on the analysis of ozone trends in the east in 
relation to interstate transport, (2) and a data analysis presentation 
conducted by the Stationary and Area Source Committee on high emitting 
Electric Generating Units during High Electric Demand Days throughout 
states within the Ozone Transport Region. MOG referred to these 
attachments in its comments on EPA's proposed action.

Response 3

    In this action, EPA is approving New York's rules into the state's 
SIP as a SIP strengthening measure. This action is not intended to 
satisfy specific nonattainment planning obligations under the Clean Air 
Act. Rather, EPA is approving these New York regulations into the SIP 
pursuant to CAA section 110(k)(3), which states that EPA ``shall 
approve [a SIP] submittal as a whole if it meets all the applicable 
requirements of this chapter.'' Because this SIP revision relates to 
criteria pollutants and strengthens the preexisting requirements in the 
New York SIP, EPA has determined it is appropriate to approve the SIP 
revision.
    EPA finds no basis, and the commenter has not provided one, to 
disapprove New York's submittal solely on grounds related to the timing 
of the regulations at issue in relation to the attainment dates. There 
are multiple separate nonattainment obligations that apply to New York 
pursuant to subpart 2 of part D of title I of the CAA, including 
requirements related to ensuring nonattainment areas attain the NAAQS 
by the applicable attainment date. EPA acknowledges that the State of 
New York has unmet attainment planning obligations for the NYMA 
nonattainment area. The EPA makes no finding in this action that New 
York has satisfied those obligations and does not make any finding as 
to whether the regulations approved through this action would be 
sufficient to meet separate nonattainment planning obligations. EPA 
action on any SIP revision submitted by New York to meet nonattainment 
planning requirements would be a separate rulemaking with an 
opportunity for public comment.
    The EPA considers comments related to interstate transport 
obligations under CAA section 110(a)(2)(D)(i)(I) to be beyond the scope 
of this action. The EPA's actions addressing interstate transport under 
the 2008 and 2015 ozone NAAQS are separate rulemakings with their own 
comment periods and the separate availability of judicial review. The 
EPA will not address comments in this action that are unrelated to this 
action.
    The EPA also reviewed NYSDEC's SIP revision to examine if similar 
comments were presented during the department's assessment of public 
comments for the proposal of Part 222. Representatives from energy 
management and sustainable energy organizations each submitted comments 
that requested NYSDEC to provide additional justification for why DG 
Sources need to be considered an economic dispatch source to be subject 
to the control requirements in Part 222. The commentors questioned why 
the adopted rule would not apply to distributed generation sources that 
provide electricity to power equipment or structures not served by 
distribution utilities and stated that these DG Sources not connected 
to the electrical grid could run fossil fuel-fired generators without 
any restrictions under Part 222. NYSDEC responded to the comments by 
stating that the purpose of Part 222 is to address and reduce emissions 
from emergency engines used in non-emergency applications, which 
include DG Sources classified as economic dispatch sources. Within 
NYSDEC's SIP revision of Part 222, the department also stated that 
sources that are not connected to the grid, which are not subject to 
Part 222, will be subject to 6 NYCRR Part 201, ``Permits and 
Registrations''.
    NYSDEC also stated that it consulted with stakeholders including 
the New York Independent System Operator (NYISO), to develop a rule 
that improves air quality while maintaining a reliable electric grid. 
Therefore, NYSDEC chose the 2021 and 2025 timeframes to strike a 
balance in improving air quality and maintaining electric grid 
reliability. NYSDEC also factored in the time for owners or operators 
applicable to Part 222 to replace their DG Sources with sources that 
are at least model year 2000 or retrofit their sources with the 
required control technology. NYSDEC also factored in the time demands 
for permitting requirements and emission testing and believes that the 
compliance schedule in the regulation is appropriate.\3\ The 2025 
timeframe builds upon and parallels existing protections in other New 
York regulations applicable to DG Sources. NYSDEC also chose the 2025 
timeframe since most sources subject to Part 222 will also have to 
comply with the emission provisions outlined in Section 24-149.6 of the 
New York City Air Pollution Code.\4\ Starting on January 1, 2025, 
stationary engines applicable to Section 24-149.6 must also demonstrate 
compliance with the EPA's Tier IV emissions standards set forth in 40 
CFR part 60, subpart III, ``Standards of Performance for Stationary 
Combustion Ignition Internal Combustion Engines''. NYSDEC also stated 
that sources that are not connected to the grid, and are not subject to 
Part 222, will be subject to 6 NYCRR Part 201, ``Permits and 
Registrations''. The revisions made to Part 222 impose emission limits 
and control technology requirements onto emergency engines located 
within the NYMA, which are sources not currently regulated under Title 
6 NYCRR Subpart 227-2, ``Reasonably Available Control Technology (RACT) 
for Major Facilities of Oxides of Nitrogen (NOX)''. The 2021 
and 2025 timeframe provides time for owners or operators of applicable 
DG Sources to retire older units and implement control technologies, 
while maintaining the reliability of the electric grid. NYSDEC also 
states within its SIP revision that a regulatory strategy to address 
emissions from DG Sources not subject to Part 222 or Subpart 227-2 may 
be addressed through a separate rulemaking effort.
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    \3\ Under 6 NYCRR Part 222, applicable owners or operators of a 
DG source that will operate as an economic dispatch source must 
notify NYSDEC by March 15, 2021, or 30 days prior to operating the 
source, whichever is later. In addition, emission test reports 
demonstrating compliance with the 2025 emission limits of Part 222 
must be submitted and approved by the Department before a 
distributed generation source may be operated as an economic 
dispatch source on or after May 1, 2025.
    \4\ Title 24, Chapter 1, Subchapter 6, Section 24-149.6 of New 
York City's Administrative Code outlines emission control provisions 
for certificated stationary combustion compression ignition internal 
combustion engines operating within New York City. See, https://www1.nyc.gov/assets/dep/downloads/pdf/air/air-pollution-control-code.pdf.
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    NYSDEC has also revised Part 222 to add subdivision 222.4(c), which 
establishes up to a two-year extension to the 2021 and 2025 compliance 
dates in cases where owners or operators can

[[Page 33440]]

provide evidence, such as contracts, to demonstrate that they intend to 
meet the emission limits set forth in section 222.4(b) (control 
requirements) as expeditiously as practicable, but no later than April 
30, 2027.
    This concludes our response to the comments received. No changes 
have been made to the proposed rule as a result of the comments 
received.

III. What action is the EPA taking?

    The EPA is approving as SIP strengthening measures New York's SIP 
revision submittals, dated February 3, 2021, and October 15, 2020, for 
the purpose of incorporating the revisions made to 6 NYCRR Subpart 219, 
``Incinerators'', and 6 NYCRR Part 222, ``Distributed Generation 
Sources'', with a state effective date of March 14, 2020, and March 25, 
2020, respectively. The EPA is also approving the attendant revisions 
made to Part 200, Subpart 200.9, ``General Provisions, Referenced 
material''. The EPA evaluated New York's submittals for consistency 
with the Clean Air Act, EPA regulations, and EPA policy. The EPA finds 
that these submissions strengthen New York's Ozone and PM SIPs.

IV. Incorporation by Reference

    In this document, the EPA is finalizing regulatory text that 
includes incorporation by reference. In accordance with requirements of 
1 CFR 51.5, EPA is finalizing the incorporation by reference of 6 NYCRR 
Part 200, Subpart 200.9, ``General Provisions, Referenced material'', 
Part 219, ``Incinerators'', and Part 222, ``Distributed Generation 
Sources'', as described in Section I of this preamble and set forth 
below in the amendments to 40 CFR part 52. The EPA has made and will 
continue to make these materials generally available through https://regulations.gov and at the EPA Region 2 Office (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in New York's SIP, have been 
incorporated by reference by EPA into that SIP, and are fully federally 
enforceable under sections 110 and 113 of the CAA as of the effective 
date of the final rulemaking of EPA's approval, and will be 
incorporated by reference in the next update to the SIP compilation.\5\
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    \5\ 62 FR 27968 (May 22, 1997).
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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 Act and 
applicable Federal regulations. See 42 U.S.C. 7410(k); see also 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 final 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), and 13563 (76 FR 3821, January 21, 2011);
     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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
any substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 1, 2022. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen Dioxide, Intergovernmental Relations, Incorporation 
by Reference, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Waste treatment and disposal.

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

Lisa Garcia,
Regional Administrator, Region 2.

    For the reasons set forth in the preamble, 40 CFR part 52 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.

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Subpart HH--New York

0
2. In Sec.  52.1670 paragraph (c) is amended in the table by revising 
entries ``Title 6, Part 200, Subpart 200.9'', ``Title 6, Part 219'', 
and ``Title 6, Part 222'' to 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
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                                                  * * * * * * *
Title 6, Part 200, Subpart 200.9.  General Provisions,         3/25/20          6/2/22   EPA is
                                    Referenced                                           approving referenced
                                    material.                                            materials that
                                                                                         previously were not
                                                                                         Federally enforceable.
                                                                                         EPA approval
                                                                                         finalized at [insert
                                                                                         Federal Register
                                                                                         citation].
 
                                                  * * * * * * *
Title 6, Part 219................  Incinerators.......         3/14/20          6/2/22   EPA approval
                                                                                         finalized at [insert
                                                                                         Federal Register
                                                                                         citation].
 
                                                  * * * * * * *
Title 6, Part 222................  Distributed                 3/25/20          6/2/22   EPA approval
                                    Generation Sources.                                  finalized at [insert
                                                                                         Federal Register
                                                                                         citation].
 
                                                  * * * * * * *
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[FR Doc. 2022-11571 Filed 6-1-22; 8:45 am]
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