Rule2021-16939
Approval and Promulgation of Implementation Plans; New York; Ozone Season NOX Controls for Simple Cycle and Regenerative Combustion Turbines
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 11, 2021
Effective
September 10, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving a revision to the New York State Implementation Plan (SIP) as a SIP- strengthening measure that is expected to further control emissions of oxides of nitrogen (NO<INF>x</INF>) to contribute to attainment and maintenance of ozone standards. This SIP strengthening measure goes beyond what has already been approved as satisfying the RACT requirements for the 2008 ozone NAAQS. The EPA is approving a SIP revision of a New York regulation that lowers allowable NO<INF>x</INF> emissions from simple cycle and regenerative combustion turbines during the ozone season. The intended effect of this action is to approve control strategies that will reduce emissions and help New York State attain and maintain the national ambient air quality standards for ozone.
Full Text
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<title>Federal Register, Volume 86 Issue 152 (Wednesday, August 11, 2021)</title>
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[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Rules and Regulations]
[Pages 43956-43960]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16939]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2020-0324, FRL-8832-02-R2]
Approval and Promulgation of Implementation Plans; New York;
Ozone Season NOX Controls for Simple Cycle and Regenerative Combustion
Turbines
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) as a SIP-
strengthening measure that is expected to further control emissions of
oxides of nitrogen (NO<INF>x</INF>) to contribute to attainment and
maintenance of ozone standards. This SIP strengthening measure goes
beyond what has already been approved as satisfying the RACT
requirements for the 2008 ozone NAAQS. The EPA is approving a SIP
revision of a New York regulation that lowers allowable NO<INF>x</INF>
emissions from simple cycle and regenerative combustion turbines during
the ozone season. The intended effect of this action is to approve
control strategies that will reduce emissions and help New York State
attain and maintain the national ambient air quality standards for
ozone.
DATES: This final rule is effective on September 10, 2021.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2020-0324. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> 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
[[Page 43957]]
available only in hard copy form. Publicly available docket materials
are available electronically through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Fausto Taveras, Environmental
Protection Agency, 290 Broadway, New York, New York 10007-1866, at
(212) 637-3378, or by email at <a href="/cdn-cgi/l/email-protection#44102532213625376a02253137302b042134256a232b32"><span class="__cf_email__" data-cfemail="da8ebbacbfa8bba9f49cbbafa9aeb59abfaabbf4bdb5ac">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
The SUPPLEMENTARY INFORMATION section is arranged as follows:
Table of Contents:
I. What is the background for this action?
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 this action?
On February 26, 2021, the EPA published a Notice of Proposed
Rulemaking that proposed to approve a revision to the New York SIP
submitted by the State of New York on May 18, 2020. See 86 FR 11688.
The SIP revision includes a newly-adopted regulation, Title 6 of the
New York Code of Rules and Regulations (NYCRR), Subpart 227-3, ``Ozone
Season Oxides of Nitrogen (NO<INF>x</INF>) Emission Limits for Simple
Cycle and Regenerative Combustion Turbines'' (Subpart 227-3), meant to
reduce NO<INF>x</INF> emissions from simple cycle and regenerative
combustion turbines during the ozone season. New York's May 2020 SIP
submittal applies to major sources of NO<INF>x</INF> as a SIP-
strengthening measure for New York's ozone SIP.
The EPA is also approving the removal of New York's previous 6
NYCRR Subpart 227-3, ``Pre-2003 Nitrogen Oxides Emissions Budget and
Allowance Program'' (New York's 227-3 Trading Program Regulation) from
New York's SIP.\1\ New York's 227-3 Trading Program Regulation
contained a NO<INF>x</INF> emissions budget and allowance trading
system that is no longer in effect and that New York repealed from the
New York Code of Rules and Regulations on September 5, 2014.
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\1\ In the February 26, 2021 Notice of Proposed Rulemaking
(NPRM), the EPA mistakenly wrote that it was ``also proposing to
approve into the SIP the new version of 6 NYCRR Subpart 227-3,
``Pre-2003 Nitrogen Oxides Emissions Budget and Allowance Program''
(New York's 227-3 Trading Program Regulation).'' (Emphases added).
The EPA, as stated above, intended to propose to remove this
previous version of Subpart 227-3 from New York's SIP. The EPA's
intention to remove this version from New York's SIP was made clear
by, for example, the section of the NPRM entitled ``Removal of New
York's Nitrogen Oxides Emissions Budget and Allowance Program (Ozone
Control Periods 1999-2002)'' (86 FR at 11690-11691). The EPA
received no comments on this issue. Because the agency's intention
was made clear, it has determined the language in the NPRM provided
adequate notice of EPA's intended proposal with respect to this
provision. Thus, the EPA is finalizing the removal of New York's
227-3 Trading Program Regulation from New York's SIP.
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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 February 26, 2021
proposed rulemaking. See 86 FR 11688.
II. What comments were received in response to the EPA's proposed
action?
In response to EPA's February 26, 2021 proposed rulemaking on New
York's SIP revision, 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-2020-0324 on the <a href="http://www.regulations.gov">http://www.regulations.gov</a>
website.
Comment 1: A Washington State citizen commenter supports the EPA's
proposed approval of New York's SIP revision since ``. . . high levels
of nitrogen oxides are extremely detrimental . . . and [the commenter
believes] that it would be in the best interest of public health to
lower the allowable levels of the nitrogen oxides allowed in NYC.''
Response 1: The EPA acknowledges the commenter's support of the
EPA's proposed rule.
Comment 2: An anonymous citizen provided extensive comments
regarding the establishment of the Clean Air Act and the impact of NOx
emissions to the environment. The commenter voices support of the EPA's
proposed approval since ``. . . these turbines would be beneficial when
it comes to lowering nitrous oxide emissions during the warmer periods,
and ozone seasons.''
Response 2: The EPA acknowledges the commenter's support of the
EPA's proposed rule.
Comment 3: A New York State citizen provides extensive comments, in
which the commenter asks if the COVID-19 pandemic has impacted studies
concerning NOx. The commenter provides a range of data about COVID-19
and its impacts globally and across the country.
Response 3: The EPA has determined that this comment is outside the
scope of our proposed action. This comment does not make specific
claims about how EPA should modify its proposed action, and therefore
the EPA will not provide a specific response to this comment.
Comment 4: The Midwest Ozone Group (MOG) submitted comprehensive
comments that urge the EPA to require New York to impose all emission
controls for Simple Cycle Combustion Turbines (SCCTs) units by 2023,
instead of the adopted 2025 final phase year. MOG stated that a 2023
implementation will ``be consistent with the nonattainment obligations
of the [New York Metropolitan Nonattainment Area, or] NYMA.'' MOG also
provided details on how NOx emissions from New York's SCCTs adversely
impact upwind states like Connecticut and argued that EPA's proposed
approval fails to recognize the impact on those upwind states and the
Good Neighbor Provisions of the Clean Air Act. In addition, MOG
provided the following comments, and extensive details for each, as
follows:
1. In 2023, the only remaining ozone monitor modeled to show
nonattainment in the Northeast is located in the Connecticut portion of
the NYMA.
2. It has been well-established that residual nonattainment in
Connecticut and the NYMA is being caused by SCCT units in New York.
3. EPA should not allow, therefore, 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) MOG's December 14, 2020 comment
letter to the EPA regarding the proposal of the Revised Cross-State Air
Pollution Rule Update for the 2008 Ozone NAAQS, and (3) a data analysis
presentation conducted by the Stationary and Area Sources Committee on
high emitting Electric Generating Units during High Electric Demand
Days throughout states within the Ozone Transport Region. MOG referred
to these attachments throughout its comment on EPA's proposed action.
Response 4: The EPA reviewed NYSDEC's SIP revision to examine if
similar comments were presented during the department's assessment of
public comments for the proposal of Subpart 227-3. Representatives from
the EPA, state agencies, environmental organizations, and sustainable
energy organizations each submitted comments that requested NYSDEC to
have the proposed 2025 NOx limits on SCCTs take effect sooner. In the
EPA's case, this is because the EPA wanted the SIP-strengthening
provision to begin as expeditiously as possible to enhance New York's
ozone SIP. NYSDEC responded to the comments by stating
[[Page 43958]]
that it has consulted with stakeholders--including environmental
justice organizations, environmental groups, impacted source owners,
the NYISO, the Department of Public Service, and the New York State
Energy Research and Development Authority--during the development of
the regulation. NYSDEC stated that it chose the 2025 timeframe to take
into account considerations of improving air quality and maintaining
electric system reliability. NYSDEC has also factored in the time
demands for permitting and implementing other requirements, such as
stack testing, and believes that the compliance schedule in the
regulation is appropriate. After review, the EPA concurs with NYSDEC's
assessment because the compliance schedule will provide adequate timing
for owners or operators of impacted SCCTs to retrofit control
technology, determine compliance options, and replace or retire older
units in order to comply with the more stringent emission limits. The
EPA also agrees with NYSDEC that the chosen timeframe provides owners
and operators of SCCTs designated as a reliability source, which
represents a significant amount of the impacted SCCTs, an appropriate
timeframe to comply with the control requirements of Subpart 227-3.
Further, the EPA finds the 2025 timeframe is appropriate because it
builds upon existing protections in other New York regulations
applicable to SCCTs. For example, on July 12, 2013, the EPA published a
final approval that revised New York's SIP for ozone concerning the
control of NOx. See 78 FR 41846. The SIP revision consisted of
amendments to Title 6 of the NYCRR, Subpart 227-2, ``Reasonably
Available Control Technology (RACT) For Major Facilities of Oxides of
Nitrogen (NOx).'' The purpose of that SIP revision was to impose more
stringent emission limits on major stationary sources of NOx that
contribute to regional and local nonattainment of the 1997 and 2008
ozone standards. Included within this EPA-approved regulation are
emission limits and system averaging for SCCTs that apply year-round.
Units applicable to Subpart 227-3 already comply with federally
approved presumptive RACT emission limits. And SCCTs that are subject
to Subpart 227-3 must also comply with the provisions set in Subpart
227-2 outside the ozone season.\2\ When the EPA published the final
approval of New York's Subpart 227-2, the EPA agreed that the emission
limits detailed for SCCTs were deemed as RACT NOx limits. See 78 FR
41846, (July 12, 2013). The purpose of Subpart 227-3 is to incorporate
additional emission requirements (beyond RACT NOx limits) for SCCTs
during the ozone season only. The phased-in approach outlined within
Subpart 227-3 does not create undue delay in emission reductions
because applicable SCCTs comply with the EPA-approved NOx RACT limits
detailed in Subpart 227-2 year-round. The emission limits and
compliance schedule outlined in Subpart 227-3 will result in further
NOx reductions throughout the NYMA as expeditiously as practicable. The
EPA believes, therefore, that the additional emission requirements
listed within Subpart 227-3 will strengthen New York's ozone SIP and
help the state attain the 2008 and 2015 national ambient air quality
standards for ozone.
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\2\ Under 6 NYCRR Subpart 227-2, applicable owners or operators
of gas-fired SCCTs must comply with a RACT NOx emission limit of 50
ppmvd outside the ozone season. While owners or operators of oil-
fired SCCTs must comply with a RACT NOx limit of 100 ppmvd outside
the ozone season. The NOx emission limits are on a part per million
dry volume basis (ppmvd), corrected to 15% oxygen.
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III. What action is the EPA taking?
The EPA is approving New York's SIP revision submittal dated May
18, 2020, for purposes of incorporating 6 NYCRR Subpart 227-3, ``Ozone
Season Oxides of Nitrogen (NOx) Emission Limits for Simple Cycle and
Regenerative Combustion Turbines,'' with a state effective date of
January 16, 2020. After evaluating Subpart 227-3 for consistency with
the CAA, EPA regulations, and EPA policy, the EPA finds that the
submission strengthens New York's ozone SIP and, as an added benefit,
will help New York State attain and maintain the national ambient air
quality standards for ozone.
The EPA is also approving the removal of New York's previous 6
NYCRR Subpart 227-3,'' Pre-2003 Nitrogen Oxides Emissions Budget and
Allowance Program'', from New York's SIP. In addition to finding that
New York's 227-3 Trading Program Regulation is no longer in effect and
that New York repealed it from the New York Code of Rules and
Regulations, the EPA has determined, as discussed in the proposed
rulemaking (see 86 FR 11688), that New York's 227-3 Trading Program
Regulation has been superseded by other state and federal regulations
that required additional NOx ozone season emission reductions. As the
EPA determined regarding New York's CAIR trading program rule (see 86
FR 11688), the EPA does not believe that the removal of New York's 227-
3 Trading Program Regulation from New York's SIP will interfere with
any applicable requirement concerning attainment and reasonable further
progress, or any other applicable requirement of the NAAQS. And as
discussed in the proposed rulemaking, New York's 227-3 Trading Program
Regulation predates more stringent rules and tighter NOx ozone season
budgets under the NOx SIP call, CAIR, and CSAPR trading programs, as
well as New York NOx RACT rules; it is not applicable to the current
federal or state regulatory framework. New York also does not rely on
emission reductions from New York's 227-3 Trading Program Regulation in
any of its nonattainment planning elements required under CAA sections
110, 172, or 182 and the EPA no longer operates the NOx Budget Trading
Program allowing for the allocation and trading of allowances.
Moreover, the removal of New York's 227-3 Trading Program
Regulation from New York's SIP will have no consequences for the
attainment and maintenance of the NAAQS in any area, now or in the
future. Consistent with CAA section 110(l), the EPA has determined that
the removal of New York's 227-3 Trading Program Regulation will not
interfere with any applicable requirement concerning attainment and
reasonable further progress, or any other applicable requirement of the
NAAQS.
Accordingly, the EPA finds that it is appropriate to approve the
removal of New York's 227-3 Trading Program Regulation from the New
York SIP.
The EPA is approving New York's May 18, 2020 SIP submittal as it
applies to major sources of NOx, as a SIP-strengthening measure for New
York's ozone SIP.
IV. Incorporation by Reference
In this document, 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
227-3, ``Ozone Season Oxides of Nitrogen (NOx) Emission Limits for
Simple Cycle and Regenerative Combustion Turbines,'' the regulation
described in the amendments to 40 CFR part 52 set forth below. EPA has
made, and will continue to make, these materials generally available
through <a href="http://www.regulations.gov">www.regulations.gov</a> 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
[[Page 43959]]
York's SIP, have been incorporated by reference by EPA into that SIP,
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 Act 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 they meet the criteria of the CAA. 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:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735 (October 4, 1993)) and 13563 (76 FR 3821 (January 21, 2011));
<bullet> Is not an Executive Order 13771 (82 FR 9339 (February 2,
2017)) regulatory action because SIP approvals are exempted under
Executive Order 12866;
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255 (August 10, 1999));
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR 19885
(April 23, 1997));
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355 (May 22, 2001));
<bullet> 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
<bullet> 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
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 October 12, 2021. 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, Ozone,
Reporting and recordkeeping requirements, Volatile Organic Compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 03, 2021.
Walter Mugdan,
Acting 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, the table in paragraph (c) is amended by revising
the entry ``Title 6, Part 227, Subpart 227-3'' to read as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(c) * * *
EPA-Approved New York State Regulations and Laws
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State citation Title/subject State effective date EPA approval date Comments
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* * * * * * *
Title 6, Part 227, Subpart 227-3... Ozone Season Oxides of January 16, 2020............... August 11, 2021 [Federal
Nitrogen (NOx) Emission Register page citation]
Limits for Simple Cycle EPA approval finalized at
and Regenerative [insert Federal Register
Combustion Turbines. citation].
* * * * * * *
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[FR Doc. 2021-16939 Filed 8-10-21; 8:45 am]
BILLING CODE 6560-50-P
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