Rule2024-18064
Approval and Promulgation of Air Quality Implementation Plans; New York; Regional Haze State Implementation Plan for the Second Implementation Period
Primary source
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Published
August 15, 2024
Effective
September 16, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is approving the regional haze State Implementation Plan (SIP) revision submitted by the State of New York through the Department of Environmental Conservation (NYSDEC or New York) on May 12, 2020, as satisfying applicable requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule (RHR) for the program's second implementation period. New York's SIP submission addresses the requirement that States must periodically revise their long-term strategies for making reasonable progress towards the national goal of preventing any future, and remedying any existing, anthropogenic impairment of visibility, including regional haze, in mandatory Class I Federal areas. The SIP submission also addresses other applicable requirements for the second implementation period of the regional haze program. The EPA is taking this action pursuant to the CAA.
Full Text
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<title>Federal Register, Volume 89 Issue 158 (Thursday, August 15, 2024)</title>
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[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66234-66240]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18064]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2020-0455; FRL-11807-02-R2]
Approval and Promulgation of Air Quality Implementation Plans;
New York; Regional Haze State Implementation Plan for the Second
Implementation Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving the
regional haze State Implementation Plan (SIP) revision submitted by the
State of New York through the Department of Environmental Conservation
(NYSDEC or New York) on May 12, 2020, as satisfying applicable
requirements under the Clean Air Act (CAA) and EPA's Regional Haze Rule
(RHR) for the program's second implementation period. New York's SIP
submission addresses the requirement that States must periodically
revise their long-term strategies for making reasonable progress
towards the national goal of preventing any future, and remedying any
existing, anthropogenic impairment of visibility, including regional
haze, in mandatory Class I Federal areas. The SIP submission also
addresses other applicable requirements for the second implementation
period of the regional haze program. The EPA is taking this action
pursuant to the CAA.
DATES: This final rule is effective on September 16, 2024.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2020-0455. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g., Controlled
Unclassified Information (CUI) (formally referred to as 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="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Robert Rutherford, Air Programs
Branch, Environmental Protection Agency, 290 Broadway, New York, New
York 10007-1866, at (212) 637-3712, or by email at
<a href="/cdn-cgi/l/email-protection#792b0c0d111c0b1f160b1d572b161b1c0b0d391c0918571e160f"><span class="__cf_email__" data-cfemail="9bc9eeeff3fee9fdf4e9ffb5c9f4f9fee9efdbfeebfab5fcf4ed">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background
II. Evaluation of Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On May 12, 2020, the State of New York through the Department of
Environmental Conservation (NYSDEC or New York) submitted a revision to
its SIP to address regional haze for the second implementation period.
NYSDEC made this SIP submission to satisfy the requirements of the
CAA's regional haze program pursuant to CAA sections 169A and 169B and
40 CFR 51.308.
On March 22, 2024, the EPA published a notice of proposed
rulemaking (NPRM) in which the EPA proposed to approve New York's May
12, 2020, SIP submission as satisfying the regional haze requirements
for the second implementation period contained in the CAA and 40 CFR
51.308. 89 FR 20384. The EPA is now determining that the New York
regional haze SIP submission for the second implementation period meets
the applicable statutory and regulatory requirements and is thus
approving New York's submission into its SIP.
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 March 22, 2024, NPRM
(89 FR 20384).
II. Evaluation of Comments
In response to the EPA's March 22, 2024, NPRM, the EPA received
four distinct comments during the 30-day public comment period. One of
the
[[Page 66235]]
comments was submitted in the form of a letter and was signed by three
Non-Governmental Organization (NGO) conservation groups writing as a
coalition (i.e., the National Parks Conservation Association (NPCA),
Sierra Club, and the Coalition to Protect America's National Parks).
The NGO commenters state in their comment letter that they ``do not
oppose EPA's proposal to approve New York's [Regional Haze] SIP
Revision,'' but rather ``urge EPA to address the issues raised [in the
comment letter] before finalizing'' the approval.
Two comments received were submitted by individuals. The final
comment was submitted by the Mid-Atlantic/Northeast Visibility Union
(MANE-VU) in support of the EPA's proposed action.
The specific comments may be viewed in Docket ID Number EPA-R02-
OAR-2020-0455 on the <a href="http://www.regulations.gov">www.regulations.gov</a> website. The EPA's summary of
and response to those comments is provided below.
Comment: The individual commenter provides various reference
materials. Among the reference materials are various links to websites
providing general information related to regional haze and other
matters, none of which specifically relate to this action.
Response: The EPA acknowledges receipt of the additional
information shared by the commenter.
Comment: The individual commenter states that air quality in the
average New York City neighborhood is most severely compromised by
motor vehicle emissions and hazards created because of climate change.
To address this, the commenter promotes the increased availability of
public transportation to reduce the need for individual car use, as
well as the regulation of motor vehicle emissions. The commenter then
suggests the maintenance of electrical power lines should be considered
due to their potential to cause wildfires when the states address
energy efficiency under Ask 6. Finally, the commenter expresses that
they do not support the EPA's approval of New York's SIP until the
commenter's concerns are addressed.
Response: The EPA acknowledges the commenter's concerns regarding
the impact that motor vehicle emissions and climate change induced
hazards have on air quality. Regarding the commenter's promotion of
public transportation to reduce the need for individual car use, the
EPA has determined that this outside the scope of our proposed action
and the EPA will not be providing a specific response to this portion
of the comment. As for the commenter's recommendation relating to the
regulation of motor vehicle emissions, as provided within the NPRM, New
York identified in its submission to the EPA, its consideration of the
Heavy Duty Diesel Engine Standard, Tier 3 Motor Vehicle Standards,
Light Duty Vehicle GHG Rule for Model-Year 2017-2025, and SIP-approved
part 217, ``Motor Vehicle Emissions,'' when developing its Long-Term
Strategy to address emissions of on-road sources.\1\
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\1\ See 89 FR 20384, 20405 (March 22, 2024).
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While the commenter expresses concern over the maintenance of
electrical power lines to prevent wildfires and claims this should be
addressed when States consider energy efficiency under Ask 6, the EPA
finds the SIP submission sufficiently addresses the applicable
requirements of the CAA and the RHR for the second planning period.
Comment: The NGO commenters express concern with the EPA's
suggestion that part of the basis for its approval of New York's SIP
revision was the fact that the uniform rate of progress (URP) for
several impacted Class I areas is well below the respective 2028
glidepath and stated that the EPA has made it clear that the glidepath
is not a safe harbor to avoid requiring additional reasonable progress
measures for Class I areas. The NGO commenters posit that the EPA could
not rely on the fact that the Class I areas impacted by New York
sources were well below their respective URP glidepaths to excuse New
York from conducting rigorous Four-Factor Analyses (FFA) to determine
whether additional control measures are necessary for reasonable
progress.
Response: The EPA has stated that being below the URP glidepath is
not a safe harbor (i.e., not a basis for not evaluating sources,
considering the four statutory factors, and potentially requiring
control measures), and in evaluating the State's source selection and
control measure determinations, the EPA did not rely on the fact that
the Class I areas impacted by New York sources are below their
respective URP glidepaths. Rather, the EPA factually stated that the
2028 projections for the Class I areas that New York contributes to are
all well below their respective glidepaths. This factual statement is
necessary to support the determination that New York satisfied the
applicable requirements of 40 CFR 51.308(f)(3), relating to reasonable
progress goals (RPGs) for each Class I area. Specifically, 40 CFR
51.308(f)(3)(ii)(B), which applies to all States, is satisfied by the
analyses the State provided within its long-term strategy, as detailed
under Section 10 of the State's submittal, and by the estimated
combined visibility benefits of strategies detailed in section 9.5 of
the State's submittal. The EPA determined that because the Class I
areas that New York contributes to are all well below their respective
glidepaths, New York was not required to conduct the ``robust
demonstration'' detailed under 40 CFR 51.308(f)(3)(ii)(B).
Comment: The NGO commenters express concern with the EPA's
endorsement of New York's relied upon source selection threshold. The
NGO commenters also express concern that New York's use of the MANE-
VU's source selection threshold of 3.0 inverse megameters
(Mm<SUP>-1</SUP>), was unreasonably high. Using this threshold, New
York identified seven sources, which was then further winnowed down to
include only two sources for further consideration of an FFA.
In addition, the NGO commenters express concern that New York
failed to select the 29 additional significant sources identified by
the Federal Land Managers (FLMs) for detailed FFAs and that the MANE-VU
2 percent or greater sulfate-plus-nitrate threshold, used to determine
whether New York emissions contribute to visibility impairment at a
particular Class I area, was an extremely low triggering threshold.
Thus, the NGO commenters suggest that New York should have used a lower
threshold that would have captured a more meaningful portion of in-
state sources, such as an emissions over distance (Q/d) threshold of 5
or an equivalent threshold that captures at least 80 percent of the
State's haze-forming emissions.
Response: As explained in the NPRM,\2\ the EPA does not necessarily
agree that the 3.0 Mm<SUP>-1</SUP> visibility impact is a reasonable
threshold for source selection. The RHR recognizes that, due to the
nature of regional haze visibility impairment, numerous and sometimes
relatively small sources may need to be selected and evaluated for
implementation of control measures to make reasonable progress.\3\ As
the EPA has explained, while States have discretion to choose any
source selection threshold that is reasonable, ``[a] state that relies
on a visibility (or proxy for visibility impact) threshold to select
sources for FFA should set the threshold at a level that captures a
meaningful portion of the State's total
[[Page 66236]]
contribution to visibility impairment to Class I areas.'' In this case,
the 3.0 Mm<SUP>-1</SUP> threshold used in MANE-VU Ask 2 identified
seven sources in New York (and 22 across the entire MANE-VU region),
indicating that it may, in some cases, be unreasonably high.
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\2\ See 89 FR 20401-20402 (March 22, 2024).
\3\ See Clarifications Regarding Regional Haze State
Implementation Plans for the Second Implementation Period, EPA
Office of Air Quality Planning and Standards, at 4 (July 8, 2021)
(``2021 Clarifications Memo'').
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Notwithstanding the above, in this instance, the EPA proposed to
find that New York's additional information and explanation indicated
that the State had in fact examined a reasonable set of sources--
including sources flagged by the FLMs--and that the State had
reasonably concluded that FFAs for its top-impacting sources were not
necessary because the outcome would be that no further emission
reductions would be reasonable.
While the FLMs identified sources beyond those for which New York
conducted FFAs, the State provides in its submittal that the MANE-VU's
analysis of these additional facilities, separate of the source
selection threshold analysis MANE-VU conducted and previously
mentioned, determined they did not require FFAs. Moreover, regarding
the facilities identified by the National Park Service (NPS) for FFA
consideration, New York provides in its response to comments, that it
did reassess the controls on these facilities and determined that more
controls were not necessary.\4\
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\4\ See ``NY Response to Public Comments 05-07-2020'', as was
provided within the State's submittal to the EPA and is included
within the docket for this rulemaking.
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Furthermore, the EPA based the proposed approval on the State's
examination of its largest operating electric generating units (EGUs)
and its industrial commercial institutional (ICI) boilers, at the time
of SIP submission, and on the emissions from and controls that apply to
those sources, as well as on New York's existing SIP-approved
NO<INF>X</INF> and SO<INF>2</INF> rules that effectively control
emissions from the largest contributing stationary-source sectors.
The EPA acknowledges the NGO commenters' suggestion that New York
should have used a lower source selection threshold and evaluated
additional sources identified by the Federal Land Managers. That said,
the RHR does not require States to consider controls for all sources,
all source categories, or any or all sources in a particular source
category. Rather, States have discretion to choose any source selection
methodology or threshold that is reasonable, provided that the choices
they make are reasonably explained.\5\ To this end, 40 CFR
51.308(f)(2)(i) requires that a State's SIP submission must include ``a
description of the criteria it used to determine which sources or
groups of sources it evaluated.'' The technical basis for source
selection must also be appropriately documented, as required by 40 CFR
51.308(f)(2)(iii). In this instance, the EPA proposed to find that New
York had demonstrated that the sources of SO<INF>2</INF> and
NO<INF>X</INF> within the State that would be expected to contribute to
visibility impairment have small emissions of those pollutants, are
subject to stringent SIP-approved emission control measures, or both.
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\5\ See Clarifications Memo at Sections 2 and 2.1.
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New York's information and explanation indicate that the State
examined a reasonable set of sources, including sources captured by the
other MANE-VU Asks and sources flagged by the FLMs, and reasonably
concluded that additional FFAs were not necessary because the outcome
would be that no further emission reductions would be reasonable for
this planning period.
Comment: The NGO commenters express concern with the EPA's proposed
approval of New York excluding sources from a FFA by asserting sources
are effectively controlled and exempt from consideration. The NGO
commenters reference Regional Haze guidance documents and the CAA to
reason that the demonstrations for numerous sources, provided by New
York, are highly flawed and fail to adequately demonstrate that
facilities within New York are effectively controlled.
Response: The EPA's approval of New York's Regional Haze SIP is
based on New York's satisfaction of the applicable regulatory
requirements for the second planning period in 40 CFR 51.308(f), (g),
and (i). These requirements include that States must evaluate and
determine the emission reduction measures necessary to make reasonable
progress by considering the four statutory factors and that the
measures that are necessary for reasonable progress must be in the SIP.
New York's submission includes FFAs in response to Asks 2 (for
NO<INF>X</INF>) and 3 (for SO<INF>2</INF> emissions from sources across
the State). As the EPA explained in the NPRM, in assessing its
compliance with these Asks, New York explicitly engaged with the
statutory and regulatory requirement to determine measures necessary
for reasonable progress based on the four factors. As a result, the EPA
proposed in the NPRM to approve New York's SIP submittal as satisfying
the requirement of 40 CFR 51.308(f)(2)(i) that a State determine the
emission reduction measures that are necessary to make reasonable
progress by considering the four factors.
Moreover, New York's long-term strategy relied on several State air
pollution control regulations already approved into the SIP, including
6 NYCRR subpart 225-1, Fuel Composition and Use--Sulfur Limitations, 6
NYCRR part 219, Incinerators, and 6 NYCRR subpart 227-2, Reasonably
Available Control Technology (RACT) for Major Facilities of Oxides of
Nitrogen (NO<INF>X</INF>). The EPA finds that these regulations
sufficiently address the long-term strategy requirements of the RHR
because they establish emission limits for various source categories,
which will reduce the formation of visibility impairing pollutants.
Thus, the EPA is appropriately finalizing its approval of New York's
Regional Haze SIP revision based on the EPA's determination that New
York's SIP, including its long-term strategy, satisfies the
requirements of 40 CFR 51.308(f)(2)(i).
Contrary to the NGO commenters' arguments, New York's reliance on
already effective controls in lieu of FFAs for other sources in the
State is not inconsistent with the CAA or the EPA's Regional Haze
Guidance. As the comment notes, the EPA stated in the NPRM that the CAA
and RHR do not require that every State must analyze the four factors
for all sources. Indeed, the Agency also recognizes that analyses
regarding reasonable progress are state-specific and that, based on
States' and sources' individual circumstances, what constitutes
reasonable reductions in visibility impairing pollutants will vary from
state-to-state.\6\
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\6\ See 89 FR 20387 (March 22, 2024).
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Accordingly, in both guidance documents, the ``Guidance on Regional
Haze State Implementation Plans for the Second Implementation Period''
issued by EPA in August 2019 (``2019 Guidance'') and the 2021
Clarifications Memo, the EPA recognized that a State may reasonably
decide not to select sources that have recently installed effective
controls.\7\ As the EPA stated in the 2021 Clarifications Memo, ``The
underlying rationale for the `effective controls' flexibility is that
if a source's emissions are already well controlled, it is unlikely
that further cost-effective reductions are available.'' \8\ In such a
scenario, per the guidance, the State should explain why it is
reasonable to assume that a full FFA would likely result in the
conclusion that no further controls are necessary.\9\
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\7\ 2019 Guidance at 22-25; 2021 Clarifications Memo at 5.
\8\ 2021 Clarifications Memo at 5.
\9\ 2019 Guidance at 23; 2021 Clarifications Memo at 5.
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[[Page 66237]]
In this case, New York evaluated those sources that had recently
installed controls, including applicable facility permits and
regulations, and demonstrated that the high level of control already
required makes it reasonable to conclude that the controls were
effective; a full FFA would likely result in the conclusion that no
further controls are necessary. Thus, the EPA finds that New York
satisfied the requirements of the RHR, as clarified by EPA Guidance.
Comment: The NGO commenters express concern with the lack of source
specific FFA information for the two sources, Finch Paper and Lafarge
Building Materials, which New York selected for FFAs. Specifically, the
NGO commenters' claim that New York did not provide any of the required
documentation to support its reasonable progress determinations for
these two facilities and that New York's conclusory statements relied
on an outdated RACT analysis and MACT compliance requirement, and not
on FFAs. Similarly, the NGO commenters argue that New York's
abbreviated analysis for Lafarge Building Materials do not comport with
the legal requirements of an FFA.
Additionally, regarding the determination that the emission limits
for Finch Paper and Lafarge Building Materials limit their potential
maximum light extinction impact below 3.0 (Mm<SUP>-</SUP><SUP>1</SUP>)
and well below their previous levels, the NGO commenters assert that a
general lowering of emissions below a source screening threshold since
the 2011 emissions year on which the MANE-VU based its source-selection
screening process, is not an adequate basis for the EPA to approve an
otherwise arbitrary FFA. The NGO commenters claim that the EPA's
proposed reliance on SIP-approved controls installed at Finch Paper and
Lafarge Building Materials, which limit potential contribution to
visibility impairment, is inadequate when considering FFA requirements.
Finally, the NGO commenters express concern that there is no
documentation that the controls in place at Finch Paper and Lafarge
Building Materials are in the SIP. The NGO commenters assert that EPA
must require New York to conduct a complete and rigorous FFAs and
supplement the SIP. If New York fails to do so, the NGO commenters
assert the EPA must conduct the FFAs on the State's behalf, along with
providing the necessary supporting documentation.
Response: New York relied on the MANE-VU to target sources for
which the State conducted an FFA. Specifically, as New York provides
within section 10.6.3 of its submittal, Finch Paper and Lafarge
Building Materials were the two sources in the State that were
identified via modeling by the MANE-VU to have the potential for 3.0
Mm<SUP>-1</SUP> or greater visibility impacts at Class I areas within
the MANE-VU region. Accordingly, the State conducted a FFA for both
sources pursuant to 40 CFR 51.308(f)(2)(i). New York listed the
statutory four factors that States must consider when conducting an
FFA, evaluated the individual four factors with respect to each of the
two facilities, and determined the emission reduction measures that are
necessary to make reasonable progress.\10\
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\10\ See section 10.6.3, Significant Visibility Impact Sources,
of New York's SIP Revision to the EPA.
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New York considered a RACT analysis and MACT compliance
requirements when evaluating the four factors for Finch Paper. New
York's submission determined that the phased-in switch from No. 6 fuel
oil to natural gas in their boilers (completed by the end of 2015) and
the boiler and combustion tune-ups, consistent with 40 CFR part 63,
subpart DDDDD (Boiler MACT Rule) (especially for boilers 4 and 5), were
adequate upgrades to control emissions. New York states that it has
adopted RACT-level controls for NO<INF>X</INF> and volatile organic
compound (VOC) sources statewide on the largest source categories and
that it fully complies with the requirements for Class I areas to
identify the RPGs. The EPA finds this analysis and its consideration of
the four factors supports the State's reasonable progress
determinations for these two facilities and is appropriate for meeting
the RHR requirements under 40 CFR 51.308(f)(2)(i).
Regardless of the State's determination that the emission limits
for Finch Paper and Lafarge Building Materials limit their potential
maximum light extinction impact below 3.0 inverse megameters
(Mm<SUP>-1</SUP>), the RHR does not provide a particular emission
threshold which States must meet when considering installation or
upgrade of emission controls under the four factors. However, the State
has determined these emission limits will provide for reasonable
progress towards achieving natural visibility conditions in Class I
areas it impacts. New York evaluated the four factors for both sources
under the flexibility provided by the EPA's RHR, which provides States
the ability to determine the long-term strategies necessary to make
reasonable progress. Therefore, the EPA has determined that the State
is taking the necessary steps in accordance with the CAA and RHR to
continue improving visibility conditions.
Finally, documentation that the controls in place at Finch Paper
and Lafarge Building Materials are in the SIP can be found under EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
New York SIP.\11\
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\11\ See <a href="https://www.epa.gov/air-quality-implementation-plans/epa-approved-nonregulatory-provisions-and-quasi-regulatory-34">https://www.epa.gov/air-quality-implementation-plans/epa-approved-nonregulatory-provisions-and-quasi-regulatory-34</a>.
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Comment: The NGO commenters express concern over New York's
reliance on a cost-effectiveness threshold that the NGO commenters
consider to be unreasonably low and unable to achieve reductions in
visibility-impairing pollution from the State's sources. The NGO
commenters suggest New York should have used a higher cost-
effectiveness threshold, similar to those employed by other States like
Colorado and Nevada, who utilized a $10,000 per ton threshold.
Response: The cost-effectiveness threshold New York relied upon for
consideration of what was necessary for reasonable progress was
selected in accordance with the RACT requirements found under the
NYSDEC 2013 policy, ``DAR-20 Economic and Technical Analysis for
Reasonably Available Control Technology (RACT),'' \12\ and the EPA has
determined that the cost threshold is sufficient in this case. The RHR
does not provide a specific cost effectiveness emission threshold which
States must meet when considering installation or upgrade of emission
controls under the four factors. In this case, New York reasonably
evaluated the cost effectiveness of controls for both sources.
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\12\ See <a href="https://extapps.dec.ny.gov/docs/air_pdf/dar20.pdf">https://extapps.dec.ny.gov/docs/air_pdf/dar20.pdf</a>.
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While Finch Paper's 2019 RACT analysis determined that six
technologies were technically feasible for the power boilers, the cost
analysis for three of the technologically feasible controls determined
that the costs for these control technologies exceeded the RACT
threshold identified in the NYSDEC 2013 policy. Furthermore, Finch
Paper had already implemented the other three identified control
technologies.\13\ Thus, New York determined these control costs were
too high to be considered necessary for reasonable progress under the
RHR, and the existing controls are sufficient. Moreover, the State did
not receive any comments related to the cost-threshold it utilized
during its public comment period.
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\13\ 89 FR 42810 (May 16, 2024).
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[[Page 66238]]
Comment: The NGO commenters express concern with the lack of any
federally enforceable retirements and shutdowns included within New
York's SIP Revision for which the EPA can rely on to support its
proposed approval.
Response: The commenter refers to facilities and units at sources
that have ceased operating and were therefore not selected for further
examination and consideration of the four factors. New York referenced
a number of these facilities, including Somerset Operating Company,
Cayuga Generating Station, and Lafarge.\14\ Contrary to the commenters'
argument that New York did not include any enforceable retirements or
shutdowns, the State provided information about each of these
facilities as evidence of shutdowns or retirements. Evidence of
enforceable shutdowns can include a variety of different information.
For example, the permanent surrender of permits, evidence of
dismantling and/or decommissioning, and specifically a notice of
decommissioning from a regional Independent System Operator (in the
case of EGUs).
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\14\ The commenter (as well as New York) also cited the shutdown
of Indian Point Unit 2. However, Indian Point is a nuclear plant and
does not have PM or regional haze precursor emissions. Therefore,
the operation or retirement of Indian Point Unit 2 is not relevant
for the regional haze SIP, nor the State's long-term strategy.
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As explained in the NPRM, Lafarge entered a Consent Decree (CD)
with the EPA which contained a compliance schedule for the plant to
either modernize the existing plant, retrofit the existing wet process
kilns with controls, or retire the two wet process kilns.\15\
Accordingly, the EPA confirms that the wet process kilns were
demolished and are no longer in operation.\16\ Regarding the retirement
of the primary units at the Somerset Operating Company, the last coal-
fired plant operating in New York, the State provided in the supplement
to its SIP submission, that the facility is currently being demolished
and that it ceased operations and retired on March 30, 2020, following
the State's adoption of coal SO<INF>2</INF> regulations under NYCRR
part 251, ``CO2 Performance Standards for Major Electric Generating
Facilities,'' and after submitting a deactivation plan to the New York
Independent System Operator (NYISO).\17\ Moreover, the EPA determined
that on December 12, 2019, the Somerset Operating Company submitted a
complete Generator Deactivation Notice for the retirement of the 675 MW
Somerset generator to the NYISO.\18\ Similarly, the State provides in
the supplement to its submission that Unit 2 and Unit 1 at the Cayuga
Generating Station shutdown in July 2018 and November 2019,
respectively. The NYISO also determined that Cayuga Generating Station
submitted a complete Generator Deactivation Notice for Unit 1 on August
1, 2019. Cayuga Generating Station Unit 2 was also placed in an ICAP
Ineligible Forced Outage by the NYISO on July 1, 2019.\19\
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\15\ See U.S. v. Lafarge North America, Inc., Case 3:10-cv-
000440JPG-CJP, available at <a href="https://www.epa.gov/sites/default/files/documents/lafarge-cd.pdf">https://www.epa.gov/sites/default/files/documents/lafarge-cd.pdf</a>.
\16\ See Lafarge Takes Down Old Stack in Controlled Explosion,
Melanie Lekocevic, Columbia-Greene Media (November 5, 2017), Hudson
Valley 360, available at <a href="http://ns1-wtonset.newscyclecloud.com/article/lafarge-takes-down-old-stack-controlled-explosion">http://ns1-wtonset.newscyclecloud.com/article/lafarge-takes-down-old-stack-controlled-explosion</a>; see also
New York State Title V permit for Ravena Cement Plant, Condition 12-
14 (``Upon commencement of production of clinker from the new kiln
(EU 41100), the facility shall immediately discontinue use of the
old kilns (EU 41000)''), available at <a href="https://extapps.dec.ny.gov/data/dar/afs/permits/401240000100112_r1_21.pdf">https://extapps.dec.ny.gov/data/dar/afs/permits/401240000100112_r1_21.pdf</a>.
\17\ The NYISO monitors the reliability of the state's power
system and coordinates the daily operations to distribute
electricity supply. The NYISO provides open access to the state's
transmission system to allow competitive generation services. Energy
services companies who offer electricity supply, are required to
notify the NYISO of their eligibility status upon receipt of the
Department's compliance letter that the retail access application is
completed.
\18\ See <a href="https://www.nyiso.com/documents/20142/1396324/Somerset-Generator-Deactivation-Assessment-vFinal.pdf/f1fcf261-3d85-9f96-ef8f-70bdd1586505">https://www.nyiso.com/documents/20142/1396324/Somerset-Generator-Deactivation-Assessment-vFinal.pdf/f1fcf261-3d85-9f96-ef8f-70bdd1586505</a>.
\19\ See <a href="https://www.nyiso.com/documents/20142/1396324/Cayuga1and2-Generation-Deactivation-Assessment-vFinal.pdf/9328ed90-41aa-da58-354f-d02fa755f260">https://www.nyiso.com/documents/20142/1396324/Cayuga1and2-Generation-Deactivation-Assessment-vFinal.pdf/9328ed90-41aa-da58-354f-d02fa755f260</a>.
---------------------------------------------------------------------------
Thus, the EPA finds that sufficient evidence has been provided to
determine that these facilities are subject to enforceable shutdowns.
Comment: The NGO commenters express concern over the EPA's reliance
on fuel switching from coal-fired to burning of natural gas at units
lacking a thorough analysis detailing how a fuel conversion impacts
visibility impairing pollutants. Additionally, the NGO commenters argue
that controls should be considered and required at a new facility or at
a facility that switches fuel (converts to natural gas units) to
reflect emission rates that have been developed pursuant to an FFA.
Response: The EPA believes it is well understood that converting
coal-fired units to natural gas-firing is associated with significant
emission reductions. Importantly, the EPA notes that natural gas
contains nearly no sulfur, ash, or particulates.\20\ Thus, co-firing
results in a reduction in SO<INF>2</INF> emissions and particulate
emissions respectively, and SO<INF>2</INF> emissions and particulate
emissions are reduced by nearly 100% when 100% natural gas is
fired.\21\ Moreover, due to the characteristically low nitrogen content
of natural gas, NO<INF>X</INF> formation through the fuel
NO<INF>X</INF> mechanism is normally low.\22\
---------------------------------------------------------------------------
\20\ See <a href="https://www.epa.gov/system/files/documents/2024-04/attachment-5-11-natural-gas-co-firing-methodology.pdf">https://www.epa.gov/system/files/documents/2024-04/attachment-5-11-natural-gas-co-firing-methodology.pdf</a>.
\21\ See <a href="https://www.epa.gov/system/files/documents/2024-04/attachment-5-11-natural-gas-co-firing-methodology.pdf">https://www.epa.gov/system/files/documents/2024-04/attachment-5-11-natural-gas-co-firing-methodology.pdf</a>.
\22\ Id.
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The emission benefits from switching to natural gas firing are also
detailed within the recent Greenhouse Gas (GHG) Standards and
Guidelines for Fossil Fuel-Fired Power Plants, which set emission
limits for new gas-fired combustion turbines and emission guidelines
for existing coal, oil and gas-fired steam generating units.\23\
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\23\ 89 FR 39798.
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Furthermore, regarding the NGO commenters' statement that the EPA
must require the State to consider and require controls on converted
gas units developed pursuant to a FFA, the EPA recognizes that that a
State may reasonably decide not to select sources for further
consideration of additional emission controls if the State determines
that emissions at a facility fall below a reasonable threshold, as is
the case with the RED-Rochester, Morton Salt Division, and Bowline
Point Generating Station facilities the NGO commenters reference. In
fact, as New York demonstrates under Table 10-4 of its submission,
these three facilities still fall below the NGO commenters' suggested
Q/d > 5 threshold. Thus, the EPA finds that New York reasonably
determined these sources did not require further analysis of emission
controls via an FFA.
Moreover, since New York provides that these facilities have
switched from firing coal to natural gas, and this is expected to
result in significant emission reductions of SO<INF>2</INF> and
NO<INF>X</INF>, the State asserts that emissions at these facilities
are already effectively controlled. Thus, contrary to the claim in the
comment, the EPA recognizes that a State may reasonably decide not to
select sources that have recently installed effective controls.
Comment: The NGO commenters express concern with the EPA's failure
to identify what portions of New York's submittal document it proposes
to approve as SIP enforceable elements. Specifically, the NGO
commenters express concern that there are no revised SIP emission
limits for facilities within the State, such as Finch Paper, and that
the EPA does not identify the monitoring, reporting, and recordkeeping
requirements it proposes to approve for the sources into the SIP.
[[Page 66239]]
The NGO commenters argue that this prevents the public from reviewing
the administrative code or permit conditions that the EPA proposes to
include in the SIP and provide comment on whether they satisfy the
requirements of the CAA or the RHR.
Response: As provided under the CAA, for proposed action on SIPs,
the EPA must create a docket for its proposed action containing all the
information on which the proposed action relies. As the NGO commenters
note, the EPA references the ``Finch Source Specific State
Implementation Plan [SSSIP] Revision,'' which New York submitted to the
EPA on May 24, 2022, for the purpose of approving NO<INF>X</INF>
Reasonably Available Control Technology (RACT) for sources at the Finch
Paper facility as required for implementation of the 2008 and 2015
ozone National Ambient Air Quality Standards (NAAQS). While this SSSIP
is applicable to NO<INF>X</INF> RACT requirements, the EPA finds the
NO<INF>X</INF> emission reductions associated with the SSSIP to also be
consistent with the focus of New York's Regional Haze SIP at issue
here, which concerns SO<INF>2</INF> and NO<INF>X</INF> emissions and
their impacts on visibility impairment at Federal Class I areas. The
EPA proposed action on the Finch Paper SSSIP on January 19, 2024,\24\
and finalized its approval of this revision on May 16, 2024.\25\
Moreover, the EPA provided a copy of the Finch Paper SSSIP submittal,
as it was submitted by the State, within the docket for the EPA's
proposed action on New York's Regional Haze SIP. The EPA refers the NGO
commenters to the publicly available docket for this action.
---------------------------------------------------------------------------
\24\ 89 FR 3620 (January 19, 2024).
\25\ 89 FR 42810 (May 16, 2024).
---------------------------------------------------------------------------
Although approval of the SSSIP for Finch Paper was finalized and
incorporated into New York's SIP after the EPA's proposed action on New
York's Plan for the Regional Haze Second Implementation Period, the
RACT conditions within the SSSIP were proposed to be included in the
SIP as federally enforceable prior to the EPA's proposed action on New
York's Plan for the Regional Haze Plan. The monitoring, reporting and
recordkeeping requirements to track compliance with the emission limits
that are detailed within the Finch Paper SSSIP are included in the
permit conditions, which have also since been incorporated into New
York's SIP.\26\ Furthermore, as detailed later within this final
rulemaking, the EPA took several steps to ensure that the public was
given the opportunity to adequately be involved with the Federal
rulemaking process for the Finch Paper SSSIP. The EPA utilized an
enhanced outreach approach which involved the distribution of physical
fact sheets to the public, posts across the EPA's social media accounts
and the EPA's official website to increase awareness, and an extended
public comment period of 60 days to allow the public additional time to
provide informed and meaningful comments on the proposed rulemaking.
Therefore, the EPA finds that it has provided the public with a
sufficient opportunity to review and comment on the regulatory
provisions being included in New York's Regional Haze SIP to comply
with the CAA and RHR.
---------------------------------------------------------------------------
\26\ See <a href="https://www.epa.gov/system/files/documents/2024-05/ibr-ny-finch-paper-eff-jan-12-2022.pdf">https://www.epa.gov/system/files/documents/2024-05/ibr-ny-finch-paper-eff-jan-12-2022.pdf</a>, as provided on EPA's website for
New York's approved SIP (<a href="https://www.epa.gov/air-quality-implementation-plans/epa-approved-new-york-source-specific-requirements">https://www.epa.gov/air-quality-implementation-plans/epa-approved-new-york-source-specific-requirements</a>).
---------------------------------------------------------------------------
Comment: The NGO commenters express concern over the EPA's failure
to analyze and meaningfully consider the impacts of this SIP revision
on communities with environmental justice (EJ) concerns. In particular,
the NGO commenters raise concern with EPA's lack of consideration for
EJ in the source-specific analyses in its proposed action, asserting
that it is unreasonable for the EPA to ignore its obligations because
New York failed to conduct such source-specific analyses.
Response: The regional haze statutory provisions do not explicitly
address considerations of EJ, and neither do the regulatory
requirements of the second planning period in 40 CFR 51.308(f), (g),
and (i). However, the lack of explicit direction does not preclude the
State from addressing EJ in the State's SIP submission. As explained in
``EPA Legal Tools to Advance Environmental Justice'' \27\ and EPA
Regional Haze guidance,\28\ the CAA provides States with the discretion
to consider environmental justice in developing rules and measures
related to regional haze.
---------------------------------------------------------------------------
\27\ See EPA Legal Tools to Advance Environmental Justice, at
35-36 (May 2022), available at <a href="https://www.epa.gov/ogc/epa-legal-tools-advance-environmental-justice">https://www.epa.gov/ogc/epa-legal-tools-advance-environmental-justice</a>.
\28\ Clarifications Memo at 16.
---------------------------------------------------------------------------
In this instance, New York provided details in its submission
regarding the passage of the Climate Leadership and Community
Protection Act (CLCPA) in July of 2019. The CLCPA requires New York to
achieve a carbon free electric system by 2040 and reduce greenhouse gas
emissions 85% below 1990 levels by 2050, to expedite the transition to
a clean energy economy. New York anticipates that this law will drive
investment in clean energy solutions such as wind, solar, energy
efficiency and energy storage while targeting investments to benefit
disadvantaged communities by creating tens of thousands of new jobs,
improving public health and quality of life, and providing all New
Yorkers with more robust clean energy choices. Additionally, with
CLCPA's focus on EJ, State agencies will be investing at least 35% of
clean energy program resources to benefit disadvantaged communities.
As stated earlier in this NFRM, during the regulatory process
associated with the Source-Specific SIP approval for Finch Paper,\29\
the EPA took several steps to ensure that the communities within close
proximity to the Finch Paper facility were given the opportunity to
participate in the Federal rulemaking process. The EPA utilized
EJScreen to identify EJ concerns within a mile radius of the facility
and provided those results within the docket for the rulemaking for
transparency and awareness purposes. Additionally, the EPA utilized an
enhanced outreach approach which involved the distribution of physical
fact sheets to the public, posts across the EPA's social media accounts
and the EPA's official website to increase awareness, and an extended
public comment period of 60 days to allow the public additional time to
provide informed and meaningful comments on the proposed rulemaking.
---------------------------------------------------------------------------
\29\ See 89 FR 42810 (May 16, 2024).
---------------------------------------------------------------------------
III. Final Action
The EPA is approving New York's May 12, 2020, SIP submission, as
satisfying the regional haze requirements for the second implementation
period contained in 40 CFR 51.308(f), (g), and (i).
IV. 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,
[[Page 66240]]
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) because application of those requirements would be inconsistent
with the Clean Air Act.
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 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.
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 of industrial, governmental, and
commercial operations or programs and policies.''
The State did not evaluate EJ considerations by means of an
extensive and comprehensive EJ analysis as part of its SIP submittal;
the CAA and applicable implementing regulations neither prohibit nor
require such an evaluation. Nevertheless, New York did reference
existing EJ programs within its SIP submittal, as described in section
V, ``Environmental Justice Considerations,'' of the NPRM. 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.
This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and the
Comptroller General of the United States. 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 15, 2024. 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, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Alyssa Arcaya,
Acting 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 (e) is amended by adding
the entry ``Regional Haze Plan from 2018-2028'' at the end of the table
to read as follows:
Sec. 52.1670 Identification of plan.
* * * * *
(e) * * *
EPA-Approved New York Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
New York
Action/SIP element Applicable geographic or submittal EPA approval date Explanation
nonattainment area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Regional Haze Plan from 2018- State-wide.............. 05/12/2020 08/15/2024, [insert <bullet> Full
2028. Federal Register Approval.
citation]. <bullet> New York
has met the
Regional Haze
Rule requirements
for the 2nd
Implementation
Period.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2024-18064 Filed 8-14-24; 8:45 am]
BILLING CODE 6560-50-P
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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.