[Federal Register Volume 88, Number 107 (Monday, June 5, 2023)]
[Rules and Regulations]
[Pages 36481-36485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11684]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2022-0321, FRL-10144-02-R2]


Approval and Promulgation of Implementation Plans; New York; 
Particulate Matter Control Strategy

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
revision to the New York State Implementation Plan (SIP) for the 
purposes of implementing controls of air pollution by particulate 
matter (PM). The SIP revision consists of amendments to existing 
regulations outlined within

[[Page 36482]]

New York's Codes, Rules, and Regulations (NYCRR) that impose control 
measures for sources of PM. This action is being taken in accordance 
with the requirements of the Clean Air Act.

DATES: This final rule is effective July 5, 2023.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA-R02-OAR-2022-0321. All documents in the docket are 
listed on the http://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 http://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 September 20, 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 March 26, 2021. See 87 FR 57429. 
This SIP revision includes revisions to an existing regulation, Title 6 
of the New York Codes, Rules, and Regulations (NYCRR) Subpart 227-1, 
``Stationary Combustion Installations,'' with a State effective date of 
February 25, 2021. These revisions are applicable statewide and 
establish PM emission standards for existing and new stationary 
combustion installations.\1\
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    \1\ The attendant revisions to 6 NYCRR Part 200, ``General 
Provisions,'' section 200.9, ``Referenced material,'' Table 1, for 6 
NYCRR Subpart 227-1 has been addressed under a separate rulemaking 
at 87 FR 52337, effective September 26, 2022.
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    New York's revisions to Subpart 227-1 include additional control 
strategies that will reduce PM emissions from major sources throughout 
the State. The EPA is approving New York's SIP submittal which applies 
to major sources of PM, as a SIP-strengthening measure for New York's 
SIP.
    The specific details of New York's SIP submittals and rationale for 
the EPA's proposed approval 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 September 20, 2022, 
proposed rulemaking. See 87 FR 57429.

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

    In response to EPA's September 20, 2022, proposed rulemaking on New 
York's SIP revisions, the EPA received four comments during the 30-day 
public comment period. The specific comments may be viewed under Docket 
ID Number EPA-R02-OAR-2022-0321 on the https://regulations.gov website. 
The first two comments, received on October 17, 2022, and October 19, 
2022, were supportive of EPA's proposed action to approve New York's 
revisions of NYCRR Subpart 227-1, ``Stationary Combustion 
Installations,'' into New York's SIP. A summary of the remaining two 
comments and the EPA's response are provided in this section.
    Comment 3: The third comment, received on October 20, 2022, was 
submitted by an anonymous commenter from the University of Washington 
School of Law. The commenter voices support by stating that ``. . . the 
EPA proposal to approve revisions to the New York State Implementation 
Plan (SIP) is tailored enough in this situation . . . under the SIP, we 
see a careful and deliberate plan of limiting PM emissions for oil and 
solid fuel fired stationary combustion installations.'' The commenter 
also provides suggestions to New York's SIP, like including a list of 
all the stationary combustion installations that will be applicable to 
this regulation. The commenter is also supportive of EPA's proposal to 
incorporate by reference the revisions made to 6 NYCRR Subpart 227-1 
into New York's SIP by stating that ``. . . materials like Stationary 
Combustion Installations available online and through regulations.gov 
website will continue to ensure that these proposed rules will be seen 
by the public.'' The commenter also mentions that it is important for 
EPA in future actions to note whether a rule that is finalized will not 
have a direct cost on tribal governments or preempt tribal law.
    Response 3: The EPA acknowledges the commenter's support of the 
EPA's proposed rule. To address the commenter's suggestion to have New 
York's SIP include a list of all stationary combustion installations 
applicable, the EPA reviewed NYSDEC's SIP revision to examine if 
similar comments were addressed during the Department's assessment of 
public comments received on the proposal of Subpart 227-1. During the 
assessment period, representatives from private businesses also 
submitted a comment requesting NYSDEC to provide an estimate of the 
number of sites the revised regulation would likely impact. NYSDEC 
responded to the comment by stating that the Department has issued 
permits or registrations to 51 facilities throughout New York State 
that employ 76 wood fired emission sources. New York also states that 
these sources range in size from 1.4 mmBTU/HR heat input to 855 mmBTU/
HR heat input; they burn wood chips, hogged wood fuel, and wood 
pellets. The Department also provides the following breakdown in their 
response: (1) 5 facilities with 8 emission sources were issued Title V 
permits, (2) 15 facilities with 31 emission sources were issued State 
Facility permits, and (3) 31 facilities with 37 emission sources were 
issued registrations. NYSDEC affirms that the Regulatory Impact 
Statement (RIS) and the Regulatory Flexibility Analysis for Small 
Business and Local Governments (RFASBLG) will also include these 
emission source data. Also, NYSDEC is not able to accurately predict 
the number of future installations that may be impacted by this 
regulation until that facility applies for a permit or registration 
from the Department. Therefore, containing a list of applicable sources 
under Subpart 227-1 may not be accurate over time once facilities 
retire these emission sources or apply for new permits. The EPA plans 
to ensure that the incorporation by reference materials for New York's 
SIP revision of 6 NYCRR Subpart 227-1, ``Stationary Combustion 
Installations,'' will be available through http://regulations.gov and 
physically at the EPA Region 2 Office.
    Comment 4: The fourth public comment, received on October 19, 2022, 
was submitted by a New Jersey resident and Rutgers University Human 
Ecology undergraduate. The commenter acknowledges the prospective 
benefits from the EPA's intervention in New York's SIP. However, the 
commenter voices concern over Sections 227-1.3 and Section 227-1.4 of 
New York's revision to 6 NYCRR Subpart 227-1. Regarding Section 227-
1.3, the commenter mentions that ``. . . there should be more 
maintenance

[[Page 36483]]

requirements besides providing an annual tune-up of equipment. Bi-
annual or quarterly checks would be a stronger form of preventative 
maintenance that could lead to less repair costs from continuous use of 
stationary combustion installation.'' Thus, the commenter requests that 
EPA considers issuing a Federal Implementation Plan (FIP) to ``. . . 
execute more stringent regulations concerning monitoring practices in 
applicable sites.''
    Regarding Section 227-1.4, the commenter mentions that ``. . . even 
with the inclusion of Continuous Opacity Monitoring Systems (COMS), 27% 
opacity limit for 6 minutes per hour is not a feasible attainment plan 
when considering the proximity of non-attainment industries that 
contribute to PM emissions in New York . . . the compounding impacts of 
multiple industries operating at this increased level can have 
substantial effects on primary and secondary standards over time.'' The 
commenter also mentions that EPA should consider researching what the 
additional reductions in emission there would be if there were no 27% 
opacity limits for a 6-minute period every hour.
    Response 4: In this action, EPA is approving New York's SIP 
submission that revises existing provisions in rules the State's 
statewide SIP as a SIP-strengthening measure. In this action, EPA is 
not determining whether these provisions satisfy specific nonattainment 
planning obligations under the CAA for purposes of the PM2.5 
NAAQS. 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 
emission controls for criteria pollutants and strengthens the 
preexisting requirements in the New York SIP, EPA has determined it is 
appropriate to approve the SIP revision.
    The EPA does not agree with the commenter that more maintenance 
requirements besides providing an annual tune-up of equipment are 
necessary. In its own response to comments, NYSDEC noted that the 
manufacturer specifications outline that boilers require an annual 
inspection and periodic maintenance, regardless of how frequently those 
boilers are monitored. The Department concluded that the annual tune-up 
requirement will satisfy the manufacturer's recommended annual 
inspection and maintenance procedures and ensure that those procedures 
are followed and performed by the owner or operators of these impacted 
units. Therefore, the EPA finds no basis to disapprove New York's SIP 
submittal solely on grounds that boilers should have more maintenance 
requirements besides annual tune-up of equipment.
    The EPA also reviewed NYSDEC's SIP revision of 6 NYCRR Subpart 227-
1, ``Stationary Combustion Installations,'' to examine if similar 
comments regarding the commenter's opacity concerns arose during the 
Department's assessment of public comments. Following that review, the 
EPA identified that no other comments were submitted that urged the 
Department to incorporate more stringent opacity limits than those 
adopted within the revision. Within New York's SIP submittal, the 
Department indicated that the purpose of this SIP revision is to impose 
stringent particulate matter emission limits on existing and new 
stationary combustion installations that either predate, or are not 
subject to, a federal New Source Performance Standard (NSPS) and/or 
National Emission Standards for Hazardous Air Pollutants (NESHAP). 
Essentially, the purpose of this revision to Subpart 227-1 is to impose 
particulate matter and opacity standards on a larger universe of 
stationary combustion installations that are not currently subject to 
any federal NSPS or NESHAP. To address the commenter's concern 
regarding the opacity limits adopted in this rule, the EPA reviewed the 
opacity requirements listed within various NSPS and NESHAPs that also 
applied to stationary combustion installation sources applicable to New 
York's rule. The EPA reviewed these federal opacity standards and 
compared them with the opacity limits outlined within Subpart 227-1 to 
determine if the opacity requirements included in this SIP would meet 
or exceed those already enforced on a federal standard.
    In EPA's review, existing federal NSPS impose similar opacity 
requirements for Electric Utility Steam Generating Units and for 
Industrial-Commercial-Institutional Steam Generating Units.\2\ New 
York's revised Subpart 227-1 contains a lower applicability threshold 
and thus imposes the opacity and PM standards on a larger universe of 
sources. The lower applicability threshold will impose the PM limits on 
more stationary combustion installations than previous versions of the 
regulation. The EPA is approving New York's revisions to Subpart 227-1 
as a SIP-strengthening measure, since this revision extends the 
applicability of these opacity and PM standards to more existing and 
new stationary combustion installations than previous iterations of the 
rule. On May 22, 2001, the EPA finalized approval of additional 
administrative changes that New York made to Subpart 227-1. In this 
action, the EPA incorporated by reference those administrative changes, 
which included similar opacity limits as for the purpose of enforcing 
New York's SIP. See 66 FR 28059.
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    \2\ Owners or operators of affected units subject to either 40 
CFR part 60 subpart Da and Db shall not cause to be discharged into 
the atmosphere any gases which exhibit greater than 20 percent 
opacity (6-minute average), expect for one 6-minute period per hour 
of not more than 27 percent opacity. See https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-60/subpart-Da and 
https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-60/subpart-Db.
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    Since 1972, New York has developed and submitted SIP provisions 
that have allowed the New York-N. New Jersey-Long Island, NY-NJ-CT area 
to demonstrate attainment of the primary and secondary PM2.5 
National Ambient Air Quality Standards (NAAQS). See 80 FR 2206. New 
York's revision to Subpart 227-1 will continue to ensure that stringent 
PM emission limits and monitoring requirements apply to owners or 
operators of stationary combustion installations to further reduce 
emissions of the precursors of PM2.5, to help New York State 
continue to maintain the current 24-hour and Annual PM2.5 
NAAQS.
    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 New York's SIP revision submission, dated 
March 26, 2021, making revisions 6 NYCRR Subpart 227-1, ``Stationary 
Combustion Installations,'' as SIP-strengthening. This approval of the 
revisions will extend the requirements of 6 NYCRR Subpart 227-1 to a 
broader universe of sources by changing the applicability criteria of 
the existing SIP emission limits. EPA has already addressed related 
revisions New York made to 6 NYCRR Part 200, ``General Provisions,'' 
section 200.9, ``Referenced material,'' Table 1, for 6 NYCRR Subpart 
227-1 in a separate rulemaking (see 87 FR 52337, effective September 
26, 2022). These revisions include changes to the applicability 
threshold and PM emission limits that will reduce PM2.5 
emissions statewide and provide support for New York State to continue 
to maintain the current 24-hour and Annual PM2.5 NAAQS. The 
EPA finds that this submission strengthens New York's existing SIP.

[[Page 36484]]

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 
Subpart 227-1, ``Stationary Combustion Installations'', the regulation 
described in the amendments to 40 CFR part 52 as discussed in Section 
I. and III. of this preamble. The EPA has made and will continue to 
make these materials generally available through http://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.\3\
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    \3\ 62 FR 27968 (May 22, 1997).
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V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve 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 this action does not involve technical standards.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where the 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).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences.''
    The NYSDEC did not evaluate environmental justice considerations as 
part of its SIP submittal; the CAA and applicable implementing 
regulations neither prohibit nor require such an evaluation. EPA did 
not perform an EJ analysis and did not consider EJ in this action. Due 
to the nature of the action being taken here, this action is expected 
to have a neutral to positive impact on the air quality of the affected 
area. Consideration of EJ is not required as part of this action, and 
there is no information in the record inconsistent with the stated goal 
of E.O. 12898 of achieving environmental justice for people of color, 
low-income populations, and Indigenous peoples.
    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 4, 2023. 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, Intergovernmental Relations, Incorporation by Reference, 
Particulate matter, Reporting and recordkeeping requirements.

    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.

Subpart HH--New York

0
2. In Sec.  52.1670 the table in paragraph (c) is amended by revising 
the entry ``Title 6, Part 227, Subpart 227-1'' to read as follows:

[[Page 36485]]

Sec.  52.1670  Identification of plan.

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    (c) * * *

                                EPA-Approved New York State Regulations and Laws
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                                                                  State         EPA
           State citation                  Title/subject        effective     approval           Comments
                                                                   date         date
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                                                  * * * * * * *
Title 6, Part 227, Subpart 227-1....  Stationary Combustion      2/25/2021     6/5/2023   EPA approved
                                       Installations.                                     finalized at [insert
                                                                                          Federal Register
                                                                                          citation].
 
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[FR Doc. 2023-11684 Filed 6-2-23; 8:45 am]
BILLING CODE 6560-50-P


