Proposed Rule2023-21971
Approval of Air Quality Implementation Plans; New York; Emission Statement Program
Primary source
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Published
October 4, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by New York State Department of Environmental Conservation (NYSDEC) for the purpose of enhancing an existing emission statement program for stationary sources in New York State. The SIP revision consists of amendments to regulations in New York's Codes, Rules and Regulations (NYCRR) applicable to the emission statements. This SIP revision was submitted by NYSDEC to satisfy the ozone nonattainment provision of the Clean Air Act (Act or CAA). These provisions establish electronic reporting requirements for annual emission statements filed by facilities subject to Title V operating permits of the Act beginning in 2022 (for calendar year 2021 emission reporting). The intended effect is to obtain improved emissions related data from facilities located in New York State, allowing NYSDEC to more effectively plan for, and attain, the national ambient air quality standards (NAAQS). The Emission Statement rule also improves EPA's and the public's access to facility specific emission related data.
Full Text
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<title>Federal Register, Volume 88 Issue 191 (Wednesday, October 4, 2023)</title>
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[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Proposed Rules]
[Pages 68529-68532]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21971]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Docket No. EPA-R02-OAR-2023-0175; FRL 11053-01-R2]
Approval of Air Quality Implementation Plans; New York; Emission
Statement Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposal rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by New York
State Department of Environmental Conservation (NYSDEC) for the purpose
of enhancing an existing emission statement program for stationary
sources in New York State. The SIP revision consists of amendments to
regulations in New York's Codes, Rules and Regulations (NYCRR)
applicable to the emission statements. This SIP revision was submitted
by NYSDEC to satisfy the ozone nonattainment provision of the Clean Air
Act (Act or CAA). These provisions establish electronic reporting
requirements for annual emission statements filed by facilities subject
to Title V operating permits of the Act beginning in 2022 (for calendar
year 2021 emission reporting).
The intended effect is to obtain improved emissions related data
from facilities located in New York State, allowing NYSDEC to more
effectively plan for, and attain, the national ambient air quality
standards (NAAQS). The Emission Statement rule also improves EPA's and
the public's access to facility specific emission related data.
DATES: Written comments must be received on or before November 3, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2023-0175 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 through <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from <a href="http://Regulations.gov">Regulations.gov</a>. The EPA may publish any comment received
to its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For
[[Page 68530]]
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Ysabel Banon, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, telephone number (212) 637-3382, or by email at
<a href="/cdn-cgi/l/email-protection#ed8f8c838283c3949e8c8f8881ad889d8cc38a829b"><span class="__cf_email__" data-cfemail="c6a4a7a8a9a8e8bfb5a7a4a3aa86a3b6a7e8a1a9b0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
A. Ozone Background
B. Statutory and Regulatory Requirements for Emission Statements
II. Description of State's Submittal
III. Evaluation of the State's Submittal
IV. Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. Background
A. Ozone Background
Ozone is a gas that is formed by the reaction of Volatile Organic
Compound (VOC) and Oxides of Nitrogen (NO<INF>X</INF>) in the
atmosphere in the presence of sunlight. Therefore, an emission
inventory for ozone focuses on the emissions of VOC and NO<INF>X</INF>
referred to as ozone precursors. These precursors (VOC and
NO<INF>X</INF>) are emitted by many types of pollution sources,
including point sources such as power plants and industrial emissions
sources; on-road and off-road mobile sources (motor vehicles and
engines); and smaller residential and commercial sources, such as dry
cleaners, auto body shops, and household paints, collectively referred
to as nonpoint sources (also called area sources).
2008 and 2015 Ozone NAAQS Revisions
In March 2008, EPA revised the health-based National Ambient Air
Quality Standard (NAAQS) for ozone to 0.075 parts per million (ppm)
averaged over an 8-hour time frame (2008 8-hour Ozone Standard). See 73
FR 16435 (March 27, 2008). In October 2015, the EPA revised this
standard to 0.070 ppm averaged over an 8-hour time frame (2015 8-hour
Ozone Standard). See 80 FR 65291 (October 26, 2015).
On May 21, 2012, the EPA finalized its attainment/nonattainment
designations for areas across the country with respect to the 2008 8-
hour Ozone Standard and, on July 20, 2012, the designations became
effective. See 77 FR 30160 (May 21, 2012). The New York-Northern New
Jersey-Long Island Connecticut metropolitan area (NYMA) was designated
by the EPA as a ``marginal'' nonattainment area for the 2008 ozone
NAAQS.\1\ In 2016, the EPA determined that the NYMA did not attain the
2008 ozone standard by the July 20, 2015, attainment date and was
reclassified from a ``marginal'' to a ``moderate'' nonattainment area.
See 81 FR 26697 (May 4, 2016). State Implementation Plans (SIPs) for
``moderate'' nonattainment areas were due by January 1, 2017. See id.
On April 30, 2018, the EPA finalized its attainment/nonattainment
designations for most areas across the country as to the 2015 8-hour
Ozone Standard, in which the NYMA was designated by the EPA as a
``moderate'' nonattainment area. See 83 FR 25776 (June 4, 2018). On
September 23, 2019, the EPA reclassified the NYMA to ``serious''
nonattainment as to the 2008 8-hour Ozone Standard. See 84 FR 44238
(August 23, 2019).
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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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Additionally, New York is a member of the Ozone Transport Region
(OTR) established by Congress in Section 184 of the Act. Pursuant to
section 184(b)(2), any stationary source that emits or has the
potential to emit at least 50 tons per year (tpy) of VOC shall be
considered a major stationary source and subject to the requirement
which should be applicable to major stationary sources if the area were
classified as moderate nonattainment area. Thus, States within the OTR
are subject to SIP requirements in section 182(b) applicable to
moderate nonattainment areas. Also, section 182(f)(1) of the CAA
requires that the plan provisions required for major stationary sources
of VOC also apply to major stationary sources of NO<INF>X</INF> for
States with moderate (or worse) ozone nonattainment areas. A major
stationary source of NO<INF>X</INF> is defined as stationary facility
or source of air pollutants which directly emits or has the potential
to emit 100 tpy or more of NO<INF>X</INF>. See CAA section 302(j).
Therefore, the emission statement requirement is extended to
include sources in attainment area within the OTR that emit, or have
the potential to emit, 100 tpy or more of NO<INF>X</INF> or 50 tpy or
more of VOC.
B. Statutory and Regulatory Requirements for Emission Statement
Annual Reporting of VOC and NO<INF>X</INF>
The air quality planning and SIP requirements for ozone
nonattainment and transport areas are established in Subparts 1 and 2
of Part D of Title I of the Act, as amended in 1990. The EPA has
published a ``General Preamble'' and ``Appendices to the General
Preamble.'' See 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28,
1992). These describe how the EPA intends to review SIPs submitted
under Title I of the Act. EPA has also issued a draft guidance
document, entitled ``Guidance on the Implementation of an Emission
Statement Program'' (Emission Statement Guidance), dated July 1992,
which describes the minimum requirements for approvable emission
statement programs.
Section 182(a)(3)(B)(i) of the Act requires States in which all or
part of any ozone non-attainment area is located to submit SIP
revisions to EPA by November 15, 1992. The provision requires owner/
operators of stationary sources of VOC and NO<INF>X</INF> to provide
the State with a statement, at least annually, of the source's actual
emissions of VOC and NO<INF>X</INF>. Sources were to submit the first
emission statements to their respective States by November 15, 1993.
Pursuant to the Emission Statement Guidance, if the source emits either
VOC or NO<INF>X</INF> at or above levels for which the State Emission
Statement rule requires reporting, the other pollutant (VOC or
NO<INF>X</INF>) from the same facility should be included in the
emission statement, even if the pollutant is emitted at levels below
the minimum reporting level.
Section 182(a)(3)(B)(ii) of the Act allows States to waive, with
EPA approval, the requirement for an emission statement for classes or
categories of sources located in nonattainment areas, which emit less
than 25 tpy of actual plantwide VOC or NO<INF>X</INF>, provided the
class or category is included in the base year and periodic inventories
and emissions are calculated using emission factors established by EPA
(such as those found in EPA publication AP-42) \2\ or other methods
acceptable to EPA.
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\2\ U.S. EPA. 1985. Compilation of Air Pollutants Emission
Factors Volume I: Stationary Point and Area Sources. Supplement A
through D. No AP-42, Research Triangle Park, NC. 888p.
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The required Emission State Program defines how air agencies obtain
emissions data directly from certain facilities, and these data, along
with other information, are then reported to EPA as part of SIP
inventories required under the Act sections 182(a)(1) and 182(a)(3)(A).
This State program is generally referred to as an emissions statement
regulation, and it outlines how certain facilities must report
emissions and facility activity data to an
[[Page 68531]]
air agency, typically a State agency. Reports submitted to air agencies
must be accompanied by ``a certification that the information
contained'' in the report is ``accurate to the best knowledge'' of the
facility.\3\ To properly implement the emissions reporting
requirements, emissions statement regulations should be coordinated
carefully with the data elements that are required by EPA (requirements
at 40 CFR 51.1115 and 40 CFR 51.1315).
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\3\ US. EPA. 1992. Guidance of the Implementation of an Emission
Statement Program, Research Triangle Park, NC. Appendix B-2.
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II. Description of State's Submittal
On March 21, 2022, NYSDEC submitted a SIP to incorporate revisions
to 6 NYCRR Subpart 202-2, ``Emission Statements''. The purpose of 6
NYCRR Subpart 202-2 is to establish the requirements for annual
emission statements filed by facilities subject to Title V operating
permits under the Act. This provision pertains to requirements for
nonattainment areas for the purpose of enhancing an existing emission
statement program for stationary sources in New York. On November 18,
2020, NYSDEC adopted these amendments, which became State effective on
December 18, 2020. On September 1, 2022, NYSDEC submitted supplemental
information to EPA regarding these revisions.
The requirements for emission statements are set forth in EPA's Air
Emissions Reporting Requirements rule (AERR). See 40 CFR 51 Subpart A.
In order to implement the emissions statement requirements referenced
above, NYSDEC adopted 6 NYCRR Subpart 202-2 on July 15, 1994. NYSDEC
subsequently revised the provision on April 29, 2005. From 1993 through
2010, NYSDEC required paper submissions of emission statements. Since
2011 (for calendar year 2010 emissions reporting), however, facilities
have also had the option of submitting emission statements via
electronically through NYSDEC's Air Compliance and Emissions (ACE)
Electronic Reporting Tool.
Additional revisions were submitted by NYSDEC in 2007 when the EPA
approved the Emission Statement SIP revision that enhances the
reporting requirements for VOC and NO<INF>X</INF> and expands the
reporting requirement, based on specified emission thresholds, to
include CO, SO<INF>2</INF>, particulate matter measuring 2.5 microns or
less (PM<INF>2.5</INF>), particulate matter measuring 10 microns or
less (PM<INF>10</INF>), ammonia (NH<INF>3</INF>), lead (Pb) and lead
compounds and hazardous air pollutants (HAPs). See FR 61528, (October
31, 2007). Additionally, the revision improves EPA's and the public's
access to facility specific emissions related data.
In NYSDEC's March 21, 2022, submittal, the State is proposing
revisions to Subpart 202-2 to require electronic submittal of annual
Emission Statements beginning in 2022 (for calendar year 2021 emissions
reporting) for facilities subject to Title V of the Act. It is expected
that electronic reporting will be beneficial for both Title V
facilities, in the long term, and NYSDEC. These benefits include
reduced costs, processing time, and improved accuracy and file
management.
The State seeks to make two changes to Section 202-2.1
(``Applicability''). First, a new subdivision 202-2.1(c) mandates the
electronic submittal of emission statements. The new requirement will
be included as an enforceable condition in new or renewed Title V
operating permits issued after January 1, 2021. Second, by reporting
year 2025, all emission statements will be subject to the electronic
submittal requirement.
The State made changes to Section 202-2.3 (``Required contents of
an emission statement:'') First, the first sentence of paragraph 202-
2.3(a)(1) has been revised to read: ``(A) responsible official must
sign a form or other legal instrument provided by the department to
certify the emission statement information.'' Second, subparagraph 202-
2.3(a)(3)(ix) was modified to require that the sum of the percent
operation by season reported in emission statements must equal 100.
Third, subparagraph 202-2.3(a)(3)(xii) was modified to State that
reporting of emissions for processes with source classification codes
beginning with a 1 or a 2 is optional. If the facilities don't report
emissions for these processes, NYSDEC will calculate process-level
emissions based upon the process-level fuel use reported by a facility.
Fourth, subdivision 202-2.3(d) has been edited to State that facilities
with Title V operating permits will receive emission statement survey
forms provided by the State. Fifth, subdivision 202-2.3(e) was revised
to require that facilities report emissions of SO<INF>2</INF>, primary
PM<INF>2.5</INF>, and primary PM<INF>10</INF> for exempt sources during
periodic inventory years in addition to the pollutants listed in the
current version of the rule.
The State also made changes to Section 202-2.4, (``Procedures:'').
First, Subdivision 202-2.4(a) was repealed and replaced. Second, new
paragraph 202-2.4(a)(1) and 202-2.4(a)(2) will maintain the current
April 15 deadline for submitting emissions statements until such time
that a facility is subject to the electronic reporting requirement.
Third, new paragraph 202-2.4(a)(3) establishes the following deadlines
for submitting emission statements under the new electronic submittal
requirement: (a) March 15 of each year for facilities with three (3) or
fewer processes listed in their Title V permit; (b) March 31 of each
year for facilities with four (4) to six (6) processes listed in their
Title V permit; (c) April 15 of each year for facilities with seven (7)
to twelve (12) processes listed in their Title V permit; or (d) April
30 of each year for facilities with thirteen (13) or more processes
listed in their Title V operating permit. Fourth, new paragraph 202-
2.4(d) sets forth situations in which emission statements may be
submitted via courier instead of electronic submittal: (a) when data
cannot be labeled as confidential business information using the
State's electronic interface in accordance with 6 NYCRR Part 616; or
(b) a facility receives permission from the State after demonstrating a
need to submit via courier due to a failure of the electronic reporting
interface. Fifth, subdivisions 202-2.4(b) and 202-2.4(c) were modified
to account for the change in the due date for submitting emission
statements from April 15 of each year to the dates provided in
paragraph 202-2.4(a)(3).
III. Evaluation of State's Submittals
EPA reviewed NYSDEC's March 21, 2022, proposed SIP revision to
update Title 6 NYCRR part 202-2 ``Emission Statement.'' NYSDEC's SIP
revision meets the minimum requirement outlined on the Emission
Statement Guidance, Section 4, XX00.050 page 43-45.
IV. Proposed Action
Based on the EPA's review, the Emission Statement rule contains the
necessary applicability, compliance, enforcement, and reporting
requirements for an approvable emission statement program. The EPA is
proposing to approve the revisions to 6 NYCRR Part 202, Subpart 202-2,
``Emission Statements,'' with a State effective date of December 18,
2020, as part of New York's SIP. The EPA is soliciting public comments
on the issues discussed in this document. These comments will be
considered before taking final action.
V. Incorporation by Reference
In this document, EPA is proposing to include regulatory text that
includes incorporation by reference. In
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accordance with requirements of 1 CFR 51.5, EPA is proposing to
incorporate by reference revisions to 6 NYCRR Subpart 202-2, ``Emission
Statement,'' as described in Section II. of this preamble. The 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 EPA Region 2 Office (please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
VI. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the 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 that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this action:
<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 14094 (88 FR 21879, April 11,
2023);
<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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<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) application of those requirements would be inconsistent with the
Clean Air Act.
In addition, the SIP is not proposing 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 it 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).
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.
The 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.'' The 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 of industrial, governmental, and
commercial operations or programs and policies.''
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. The EPA
did not perform an EJ analysis and did not consider EJ in this action.
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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, and Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2023-21971 Filed 10-3-23; 8:45 am]
BILLING CODE 6560-50-P
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