Rule2023-11684
Approval and Promulgation of Implementation Plans; New York; Particulate Matter Control Strategy
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
June 5, 2023
Effective
July 5, 2023
Issuing agencies
Environmental Protection Agency
Abstract
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 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.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 107 (Monday, June 5, 2023)</title>
</head>
<body><pre>
[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11684]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 <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 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, Region 2, Air Programs Branch, 290 Broadway, New
York, New York 10007-1866, at (212) 637-3378, or by email at
<a href="/cdn-cgi/l/email-protection#6e3a0f180b1c0f1d40280f1b1d1a012e0b1e0f40090118"><span class="__cf_email__" data-cfemail="a9fdc8dfccdbc8da87efc8dcdaddc6e9ccd9c887cec6df">[email protected]</span></a>.
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 <a href="https://regulations.gov">https://regulations.gov</a> 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 <a href="http://regulations.gov">regulations.gov</a>
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 <a href="http://regulations.gov">http://regulations.gov</a> 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 PM<INF>2.5</INF>
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.
---------------------------------------------------------------------------
\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 <a href="https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-60/subpart-Da">https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-60/subpart-Da</a> and
<a href="https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-60/subpart-Db">https://www.ecfr.gov/current/title-40/chapter-I/subchapter-C/part-60/subpart-Db</a>.
---------------------------------------------------------------------------
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 PM<INF>2.5</INF>
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 PM<INF>2.5,</INF> to help New York State
continue to maintain the current 24-hour and Annual PM<INF>2.5</INF>
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 PM<INF>2.5</INF>
emissions statewide and provide support for New York State to continue
to maintain the current 24-hour and Annual PM<INF>2.5</INF> 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 <a href="http://regulations.gov">http://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 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\
---------------------------------------------------------------------------
\3\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
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:
<bullet> 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);
<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 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.
* * * * *
(c) * * *
EPA-Approved New York State Regulations and Laws
----------------------------------------------------------------------------------------------------------------
State EPA
State citation Title/subject effective approval Comments
date date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Title 6, Part 227, Subpart 227-1.... Stationary Combustion 2/25/2021 6/5/2023 <bullet> EPA approved
Installations. finalized at [insert
Federal Register
citation].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2023-11684 Filed 6-2-23; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on June 5, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.