82 FR 40963 - Approval of Air Quality Implementation Plans; New York; Cross-State Air Pollution Rule; NOX
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 82, Issue 166 (August 29, 2017)
Federal Register Volume 82, Issue 166 (August 29, 2017)
| Page Range | 40963-40970 | |
| FR Document | 2017-18290 |
[Federal Register Volume 82, Number 166 (Tuesday, August 29, 2017)] [Proposed Rules] [Pages 40963-40970] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-18290] ======================================================================== Proposed Rules Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. ======================================================================== Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Proposed Rules [[Page 40963]] ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2017-0425, FRL-9967-04-Region 2] Approval of Air Quality Implementation Plans; New York; Cross- State Air Pollution Rule; NOX Annual and SO2 Group 1 Trading Programs AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to conditionally approve a revision to the New York State Implementation Plan (SIP) addressing requirements of the Cross-State Air Pollution Rule (CSAPR). Under the CSAPR, large electricity generating units in New York are subject to Federal Implementation Plans (FIPs) requiring the units to participate in CSAPR federal trading programs for annual emissions of nitrogen oxides (NOX ), ozone season emissions of NOX , and annual emissions of sulfur dioxide (SO2 ). This action proposes to conditionally approve into New York's SIP the State's regulations that replace the default allowance allocation provisions of the CSAPR federal trading programs for annual NOX and SO2 emissions. At this time, EPA is not taking action on the portion of New York's SIP submittal addressing NOX ozone season emissions. EPA is proposing to conditionally approve New York's regulations for annual NOX and SO2 emissions because, while the submitted rules do not fully conform to CSAPR, New York is in the process of making further revisions to its rules and has provided a commitment to finalize and submit them by December 29, 2017. Upon timely meeting of this commitment, EPA will propose to convert the conditional approval of the SIP revision to a full approval. DATES: Comments must be received on or before September 28, 2017. ADDRESSES: Submit your comments, identified by Docket ID number EPA- R02-OAR-2017-0425, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. 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 additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3702, or by email at [email protected]. SUPPLEMENTARY INFORMATION: Table of Contents I. What is EPA's proposed action? II. Background on CSAPR and CSAPR-Related SIP Revisions III. Criteria for Approval of CSAPR-Related SIP Revisions IV. New York's Submittal and EPA's Analysis V. EPA's Proposed Action on New York's Submittal VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. What is EPA's proposed action? Pursuant to Section 110(k)(4) of the Clean Air Act (CAA), EPA is proposing to conditionally approve portions of New York's December 1, 2015 SIP submittal concerning CSAPR \1\ trading programs for annual emissions of NOX and SO2 . Large Electric Generating Units (EGUs) in New York are subject to CSAPR FIPs that require the units to participate in the federal CSAPR NOX Annual Trading Program and the federal CSAPR SO2 Group 1 Trading Program. CSAPR provides a process for the submission and approval of SIP revisions to replace certain provisions of the CSAPR FIPs while the remaining FIP provisions continue to apply. This type of CSAPR SIP is termed an abbreviated SIP. --------------------------------------------------------------------------- \1\ Federal Implementation Plans; Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and 52.39 and 40 CFR part 97). --------------------------------------------------------------------------- The New York State Department of Environmental Conservation (DEC) amended portions of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) in order to incorporate CSAPR requirements into the State's rules and allow the DEC to allocate CSAPR allowances to regulated entities in New York. 6 NYCRR Part 244, ``CAIR NOX Annual Trading Program,'' has been repealed and replaced in its entirety with a new rule, 6 NYCRR Part 244, ``Transport Rule NOX Annual Trading Program.'' 6 NYCRR Part 245, ``CAIR SO2 Trading Program,'' has also been repealed and replaced in its entirety with a new rule, 6 NYCRR Part 245, ``Transport Rule SO2 Group 1 Trading Program.'' Attendant revisions were made to 6 NYCRR Part 200, ``General Provisions,'' to update the list of referenced materials that are cited in the amended New York regulations. EPA is proposing to conditionally approve into the SIP the revised versions of 6 NYCRR Parts 200, 244 and 245. This SIP revision is being proposed for conditional approval as opposed to a full approval because of several deficiencies that must be addressed as discussed in section IV of this notice. The proposed conditional approval of portions of New York's SIP submittal is conditioned on DEC meeting the commitment, articulated in its letters dated July 14, 2016, March 4, 2017, and July 6, 2017, to make the necessary revisions to 6 NYCRR Parts 200, 244, and 245 to meet the requirements of the CAA and EPA's regulations for approval of an abbreviated SIP revision to replace EPA's default allocations of CSAPR emission allowances with state-determined allocations. The July 6, 2017 letter from DEC committed to submitting a SIP revision by December 29, 2017. The date supersedes the dates identified in the July 14, 2016, and [[Page 40964]] March 24, 2017 letters.\2\ Once EPA determines that the DEC has satisfied these conditions and EPA approves the revisions (after EPA notice and comment), EPA shall remove the conditional approval and this SIP revision will at that time receive full approval status. The conditionally approved SIP submission will remain part of the SIP until EPA takes further action. If New York fails to meet its commitment to submit a revised SIP by December 29, 2017 [i.e., the date of commitment from the state's July 6, 2017 letter], the conditional approval is treated as a disapproval. --------------------------------------------------------------------------- \2\ In their July 6, 2017 letter, the DEC indicated they needed additional time to complete their rulemaking. --------------------------------------------------------------------------- This action proposes to conditionally approve into New York's SIP state-determined allowance allocation procedures for annual NOX and SO2 allowances that would replace EPA's default allocation procedures for the control periods in 2017 and beyond. The proposed approval of this SIP revision does not alter any provision of either the CSAPR NOX Annual Trading Program or the CSAPR SO2 Group 1 Trading Program as applied to New York units other than the allowance allocation provisions, and the FIP provisions requiring those units to participate in the programs (as modified by this SIP revision) remain in place. New York also repealed 6 NYCRR Part 243, ``CAIR NOX Ozone Season Trading Program,'' and replaced it in its entirety with a new rule, 6 NYCRR Part 243, ``Transport Rule NOX Ozone Season Trading Program,'' which was included in New York's December 1, 2015 SIP submittal. EPA is not proposing to act at this time on the portion of New York's SIP submittal addressing 6 NYCRR Part 243. Since New York's December 1, 2015 submission, EPA has finalized the CSAPR Update rule \3\ to address Eastern states' interstate air pollution mitigation obligations with regard to the 2008 Ozone National Ambient Air Quality Standard (NAAQS). Among other things, starting in 2017 the CSAPR Update requires New York EGUs to participate in the new CSAPR NOX Ozone Season Group 2 Trading Program instead of the earlier CSAPR NOX Ozone Season Trading Program (now renamed the ``Group 1'' program) and replaces the ozone season budget for New York with a lower budget developed to address the revised and more stringent 2008 Ozone NAAQS. In DEC's July 14, 2016 commitment letter to EPA, New York indicated that the State would revise 6 NYCRR Part 243 to conform with the final CSAPR Update. For this reason, EPA is proposing to act at this time only on 6 NYCRR Parts 200, 244 and 245. --------------------------------------------------------------------------- \3\ 81 FR 74504 (October 26, 2016). --------------------------------------------------------------------------- Section II of this document summarizes relevant aspects of the CSAPR federal trading programs and FIPs as well as the range of opportunities states have to submit SIP revisions to modify or replace the FIP requirements while continuing to rely on CSAPR's trading programs to address the states' obligations to mitigate interstate air pollution. Section III describes the specific criteria for approval of such SIP revisions. Section IV contains EPA's analysis of New York's SIP submittal, and Section V sets forth EPA's action on the submittal. II. Background on CSAPR and CSAPR-Related SIP Revisions EPA issued CSAPR in July 2011 to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution. As amended (including the 2016 CSAPR Update), CSAPR requires 27 Eastern states to limit their statewide emissions of SO2 and/or NOX in order to mitigate transported air pollution unlawfully impacting other states' ability to attain or maintain four NAAQS: The 1997 annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, the 1997 Ozone NAAQS, and the 2008 Ozone NAAQS. The CSAPR emissions limitations are defined in terms of maximum statewide ``budgets'' for emissions of annual SO2 , annual NOX , and/or ozone-season NOX by each covered state's large EGUs. The CSAPR state budgets are implemented in two phases of generally increasing stringency, with the Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2 (and CSAPR Update) budgets applying to emissions in 2017 and later years. As a mechanism for achieving compliance with the emissions limitations, CSAPR establishes five federal emissions trading programs: A program for annual NOX emissions, two geographically separate programs for annual SO2 emissions, and two geographically separate programs for ozone-season NOX emissions. CSAPR also establishes FIP requirements applicable to the large EGUs in each covered state. The CSAPR FIP provisions require each state's EGUs to participate in up to three of the five CSAPR trading programs. CSAPR includes provisions under which states may submit and EPA will approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport- related obligations using either CSAPR's federal emissions trading programs or state emissions trading programs integrated with the federal programs.\4\ Through such a SIP revision, a state may replace EPA's default provisions for allocating emission allowances among the state's units, employing any state-selected methodology to allocate or auction the allowances, subject to timing criteria and limits on overall allowance quantities. In the case of CSAPR's federal trading programs for ozone-season NOX emissions (or integrated state trading programs), a state may also expand trading program applicability to include certain smaller EGUs.\5\ If a state wants to replace CSAPR FIP requirements with SIP requirements under which the state's units participate in a state trading program that is integrated with and identical to the federal trading program even as to the allocation and applicability provisions, the state may submit a SIP revision for that purpose as well. However, no emissions budget increases or other substantive changes to the trading program provisions are allowed. A state whose units are subject to multiple CSAPR FIPs and federal trading programs may submit SIP revisions to modify or replace either some or all of those FIP requirements. --------------------------------------------------------------------------- \4\ See 40 CFR 52.38, 52.39. States also retain the ability to submit SIP revisions to meet their transport-related obligations using mechanisms other than the CSAPR federal trading programs or integrated state trading programs. \5\ States covered by both the CSAPR Update and the NOX SIP Call have the additional option to expand applicability under the CSAPR NOX Ozone Season Group 2 Trading Program to include non-EGUs that would have participated in the former NOX Budget Trading Program. --------------------------------------------------------------------------- States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.\6\ Specific criteria for approval of each form of SIP revision are set forth in the CSAPR regulations, as described in section III below. Under the first alternative--an ``abbreviated'' SIP revision--a state may submit a SIP revision that upon approval replaces the default allowance allocation and/or applicability provisions of a CSAPR federal trading program for the state.\7\ Approval of an abbreviated SIP revision leaves the corresponding CSAPR FIP and all other provisions of the relevant federal trading program in place for the state's units. --------------------------------------------------------------------------- \6\ CSAPR also provides for a third, more streamlined form of SIP revision that is effective only for control periods in 2016 and is not relevant here. See Sec. 52.38(a)(3), (b)(3), (b)(7); Sec. 52.39(d), (g). \7\ Sec. 52.38(a)(4), (b)(4), (b)(8); Sec. 52.39(e), (h). --------------------------------------------------------------------------- Under the second alternative--a ``full'' SIP revision--a state may submit a SIP revision that upon approval [[Page 40965]] replaces a CSAPR federal trading program for the state with a state trading program integrated with the federal trading program, so long as the state trading program is substantively identical to the federal trading program or does not substantively differ from the federal trading program except as discussed above with regard to the allowance allocation and/or applicability provisions.\8\ For purposes of a full SIP revision, a state may either adopt state rules with complete trading program language, incorporate the federal trading program language into its state rules by reference (with appropriate conforming changes), or employ a combination of these approaches. --------------------------------------------------------------------------- \8\ Sec. 52.38(a)(5), (b)(5), (b)(9); Sec. 52.39(f), (i). --------------------------------------------------------------------------- The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision. First, upon EPA's approval of a full SIP revision as correcting the deficiency in the state's SIP that was the basis for a particular set of CSAPR FIP requirements, the obligation to participate in the corresponding CSAPR federal trading program is automatically eliminated for units subject to the state's jurisdiction without the need for a separate EPA withdrawal action, so long as EPA's approval of the SIP is full and unconditional.\9\ Second, approval of a full SIP revision does not terminate the obligation to participate in the corresponding CSAPR federal trading program for any units located in any Indian country within the borders of the state, and if and when a unit is located in Indian country within a state's borders, EPA may modify the SIP approval to exclude from the SIP, and include in the surviving CSAPR FIP instead, certain trading program provisions that apply jointly to units in the state and to units in Indian country within the state's borders.\10\ Finally, if at the time a full SIP revision is approved EPA has already started recording allocations of allowances for a given control period to a state's units, the federal trading program provisions authorizing EPA to complete the process of allocating and recording allowances for that control period to those units will continue to apply, unless EPA's approval of the SIP revision provides otherwise.\11\ --------------------------------------------------------------------------- \9\ Sec. 52.38(a)(6), (b)(10(i); Sec. 52.39(j). \10\ Sec. 52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi), (b)(9)(vi)-(vii), (b)(10)(i); Sec. 52.39(f)(4)-(5), (i)(4)-(5), (j). \11\ Sec. 52.38(a)(7), (b)(11)(i); Sec. 52.39(k). --------------------------------------------------------------------------- III. Criteria for Approval of CSAPR-Related SIP Revisions Each CSAPR-related abbreviated or full SIP revision must meet the following general submittal criteria:Timeliness and completeness of SIP submittal. If a state wants to replace the default allowance allocation or applicability provisions of a CSAPR federal trading program, the complete SIP revision must be submitted to EPA by December 1 of the year before the deadlines described below for submitting allocation or auction amounts to EPA for the first control period for which the state wants to replace the default allocation and/or applicability provisions.\12\ This SIP submission deadline is inoperative in the case of a SIP revision that seeks only to replace a CSAPR FIP and federal trading program with a SIP and a substantively identical state trading program integrated with the federal trading program. The SIP submittal completeness criteria in section 2.1 of appendix V to 40 CFR part 51 also apply. --------------------------------------------------------------------------- \12\ 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii), (b)(5)(vii), (b)(8)(iv), (b)(9)(viii); Sec. 52.39(e)(2), (f)(6), (h)(2), (i)(6). --------------------------------------------------------------------------- In addition to the general submittal criteria, a CSAPR-related abbreviated or full SIP seeking to address the allocation or auction of emission allowances must meet the following further criteria: Methodology covering all allowances potentially requiring allocation. For each federal trading program addressed by a SIP revision, the SIP revision's allowance allocation or auction methodology must replace both the federal program's default allocations to existing units \13\ at 40 CFR 97.411(a), 97.511(a), 97.611(a), 97.711(a), or 97.811(a) as applicable, and the federal trading program's provisions for allocating allowances from the new unit set- aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a), 97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), 97.711(b)(1) and 97.712(a), or 97.811(b)(1) and 97.812(a), as applicable.\14\ In the case of a state with Indian country within its borders, while the SIP revision may neither alter nor assume the federal program's provisions for administering the Indian country NUSA for the state, the SIP revision must include procedures addressing the disposition of any otherwise unallocated allowances from an Indian country NUSA that may be made available for allocation by the state after EPA has carried out the Indian country NUSA allocation procedures.\15\ --------------------------------------------------------------------------- \13\ In the context of the approval criteria for CSAPR-related SIP revisions, an ``existing unit'' is a unit for which EPA has determined default allowance allocations (which could be allocations of zero allowances) in the rulemakings establishing and amending CSAPR. A spreadsheet showing EPA's default allocations to existing units is posted at www.epa.gov/crossstaterule/techinfo.html. \14\ Sec. 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii), (b)(8)(iii), (b)(9)(iii); Sec. 52.39(e)(1), (f)(1), (h)(1), (i)(1). \15\ See Sec. Sec. 97.412(b)(10)(ii), 97.512(b)(10)(ii), 97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii). --------------------------------------------------------------------------- Assurance that total allocations will not exceed the state budget. For each federal trading program addressed by a SIP revision, the total amount of allowances auctioned or allocated for each control period under the SIP revision (prior to the addition by EPA of any unallocated allowances from any Indian country NUSA for the state) generally may not exceed the state's emissions budget for the control period less the sum of the amount of any Indian country NUSA for the state for the control period and any allowances already allocated to the state's units for the control period and recorded by EPA.\16\ Under its SIP revision, a state is free to not allocate allowances to some or all potentially affected units, to allocate or auction allowances to entities other than potentially affected units, or to allocate or auction fewer than the maximum permissible quantity of allowances and retire the remainder. Under the CSAPR NO X Ozone Season Group 2 Trading Program only, additional allowances may be allocated if the state elects to expand applicability to non-EGUs that would have been subject to the former NOX Budget Trading Program established for compliance with the NOX SIP Call.\17\ --------------------------------------------------------------------------- \16\ Sec. 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A), (b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A); Sec. 52.39(e)(1)(i), (f)(1)(i), (h)(1)(i), (i)(1)(i). \17\ Sec. 52.38(b)(8)(iii)(A). (b)(9)(iii)(A). ---------------------------------------------------------------------------Timely submission of state-determined allocations to EPA. The SIP revision must require the state to submit to EPA the amounts of any allowances allocated or auctioned to each unit for each control period (other than allowances initially set aside in the state's allocation or auction process and later allocated or auctioned to such units from the set-aside amount) by the following deadlines.\18\ Note that the submission deadlines differ for amounts allocated or auctioned to units considered existing units for CSAPR purposes and amounts allocated or auctioned to other units. --------------------------------------------------------------------------- \18\ Sec. 52.38(a)(4)(i)(B)-(C), (a)(5)(i)(B)-(C), (b)(4)(ii)(B)-(C), (b)(5)(ii)(B)-(C), (b)(8)(iii)(B)-(C), (b)(9)(iii)(B)-(C); Sec. 52.39(e)(1)(ii)-(iii), (f)(1)(ii)-(iii), (h)(1)(ii)-(iii), (i)(1)(ii)-(iii). [[Page 40966]] CSAPR NOX Annual, CSAPR NOX Ozone Season Group 1, CSAPR SO2 Group 1, and CSAPR SO2 Group 2 Trading Programs ------------------------------------------------------------------------ Deadline for Year of the submission to EPA Units control period of allocations or auction results ------------------------------------------------------------------------ Existing........................ 2017 and 2018..... June 1, 2016. 2019 and 2020..... June 1, 2017. 2021 and 2022..... June 1, 2018. 2023 and later June 1 of the years. fourth year before the year of the control period. Other........................... All years......... July 1 of the year of the control period. ------------------------------------------------------------------------ CSAPR NOX Ozone Season Group 2 Trading Program ------------------------------------------------------------------------ Deadline for Year of the submission to EPA Units control period of allocations or auction results ------------------------------------------------------------------------ Existing........................ 2019 and 2020..... June 1, 2018. 2021 and 2022..... June 1, 2019. 2023 and 2024..... June 1, 2020. 2025 and later June 1 of the years. fourth year before the year of the control period. Other........................... All years......... July 1 of the year of the control period. ------------------------------------------------------------------------ No changes to allocations already submitted to EPA or recorded. The SIP revision must not provide for any change to the amounts of allowances allocated or auctioned to any unit after those amounts are submitted to EPA or any change to any allowance allocation determined and recorded by EPA under the federal trading program regulations.\19\ --------------------------------------------------------------------------- \19\ Sec. 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D), (b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D); Sec. 52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), (i)(1)(iv). --------------------------------------------------------------------------- No other substantive changes to federal trading program provisions. The SIP revision may not substantively change any other trading program provisions, except in the case of a SIP revision that also expands program applicability as described below.\20\ Any new definitions adopted in the SIP revision (in addition to the federal trading program's definitions) may apply only for purposes of the SIP revision's allocation or auction provisions.\21\ --------------------------------------------------------------------------- \20\ Sec. 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8), (b)(9); Sec. 52.39(e), (f), (h), (i). \21\ Sec. 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii), (b)(8)(iv), (b)(9)(iv); Sec. 52.39(e)(1), (f)(2), (h)(1), (i)(2). --------------------------------------------------------------------------- In addition to the general submittal criteria, a CSAPR-related abbreviated or full SIP revision seeking to expand applicability under their integrated state trading programs (which is allowed for CSAPR's NO X ozone season programs only) must meet the following further criteria:Only EGUs with nameplate capacity of at least 15 MWe. The SIP revision may expand applicability only to additional fossil fuel- fired boilers or combustion turbines serving generators producing electricity for sale, and only by lowering the generator nameplate capacity threshold used to determine whether a particular boiler or combustion turbine serving a particular generator is a potentially affected unit. The nameplate capacity threshold adopted in the SIP revision may not be less than 15 MWe.\22\ In addition or alternatively, applicability may be extended to non-EGUs that would have been subject to the former NO X Budget Trading Program established for compliance with the NOX SIP Call.\23\ --------------------------------------------------------------------------- \22\ Sec. 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i). \23\ Sec. 52.38(b)(8)(ii), (b)(9)(ii). ---------------------------------------------------------------------------No other substantive changes to federal trading program provisions. The SIP revision may not substantively change any other trading program provisions, except in the case of a SIP revision that also addresses the allocation or auction of emission allowances as described above.\24\ --------------------------------------------------------------------------- \24\ Sec. 52.38(b)(4), (b)(5), (b)(8), (b)(9). --------------------------------------------------------------------------- In addition to the general submittal criteria and the other applicable criteria described above, a CSAPR-related full SIP revision must meet the following further criteria: Complete, substantively identical trading program provisions. The SIP revision must adopt complete state trading program regulations substantively identical to the complete federal trading program regulations at 40 CFR 97.402 through 97.435, 97.502 through 97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through 97.835, as applicable, except as described above in the case of a SIP revision that seeks to replace the default allowance allocation and/or applicability provisions.\25\ --------------------------------------------------------------------------- \25\ Sec. 52.38(a)(5), (b)(5), (b)(9); Sec. 52.39(f), (i). --------------------------------------------------------------------------- Only non-substantive substitutions for the term ``State.'' The SIP revision may substitute the name of the state for the term ``State'' as used in the federal trading program regulations, but only to the extent that EPA determines that the substitutions do not substantively change the trading program regulations.\26\ --------------------------------------------------------------------------- \26\ Sec. Sec. 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v); 52.39(f)(3), (i)(3). --------------------------------------------------------------------------- Exclusion of provisions addressing units in Indian country. The SIP revision may not impose requirements on any unit in any Indian country within the state's borders and must not include the federal trading program provisions governing allocation of allowances from any Indian country NUSA for the state.\27\ --------------------------------------------------------------------------- \27\ Sec. Sec. 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi); 52.39(f)(4), (i)(4). --------------------------------------------------------------------------- IV. New York's Submittal and EPA's Analysis A. New York's SIP Submittal On December 1, 2015, New York submitted to EPA an abbreviated SIP revision that, if approved, would replace the default allowance allocation provisions of the CSAPR SO 2 Group 1, CSAPR NOX Annual, and CSAPR NOX Ozone Season Trading Programs for the state's EGUs for the control periods in 2017 and beyond with provisions establishing state-determined allocations for those control periods but would leave the corresponding CSAPR FIPs and all other provisions of the trading programs in place. The SIP submittal includes the following adopted state rules: 6 NYCRR Part 243, ``Transport Rule NOX Ozone Season Trading Program,'' 6 NYCRR Part 244, ``Transport Rule NOX Annual Trading Program,'' and 6 NYCRR Part 245, ``Transport Rule SO2 Trading Program.'' Previous versions of the rules developed for state participation in the Clean Air Interstate Rule \28\ (CAIR), i.e., 6 NYCRR Part 243, ``CAIR NOx Ozone Season Trading Program,'' 6 NYCRR Part 244, ``CAIR NOX Annual Trading Program,'' and 6 NYCRR Part 245, ``CAIR SO2 Trading Program,'' have been repealed and replaced in their entirety with the new rules. Attendant revisions were made to 6 NYCRR Part 200, ``General Provisions,'' to update the list of referenced material that are cited in the amended New York regulations. The regulations were adopted on November 10, 2015, and effective on December 12, 2015. --------------------------------------------------------------------------- \28\ 70 FR 25162 (May 12, 2005). --------------------------------------------------------------------------- As discussed in section I, EPA is not acting at this time on the portion of New York's SIP submittal addressing 6 NYCRR Part 243, which will be addressed in another rulemaking at a later date. In this rulemaking, EPA is addressing NYCRR Parts 244, 245, and 200. [[Page 40967]] New York's Parts 244 and Part 245 allow the State to replace the provisions of the CSAPR NOX Annual and SO2 Group 1 trading program allocation methodology with its own methodology. Parts 244 and 245 apply to units that serve an electrical generator with a nameplate capacity equal to or greater than 25 megawatts of electrical output and sell any amount of electricity. The control periods for Parts 244 and 245 run from January 1 to December 31. DEC would allocate allowances for control periods beginning on or after January 1, 2017. For existing units, New York's allocation methodology is based on the average of recent emissions (i.e., the average of the 3 last years for which data is available) from all New York Transport Rule units. Five percent of the statewide budgets for annual emissions of SO2 and NOX would be set aside for new units, and the remainder of the statewide budgets, but at least ten percent, will be allocated to the Energy Efficiency and Renewable Energy Technology (EERET) account. If the allocation to the EERET account would be less than the prescribed minimum after allocations to existing units based on the 3-year average of emissions and an allocation of five percent to the new unit set-aside, allocations to existing units would be reduced proportionally by the amounts necessary to ensure that ten percent of the budget is allocated to the EERET account. The DEC will distribute all allowances at no cost with the exception of allowances held in the EERET account, which will be administered by the New York State Energy Research and Development Authority (NYSERDA). The sale of allowances by NYSERDA will be used to fund energy efficiency projects, renewable energy, or clean energy technology. Any EERET allowances that are not sold or distributed by NYSERDA within 12 months of the initial allocation to the EERET account will be returned to the DEC for retirement or reallocation. As discussed more fully below, in a July 14, 2016 letter to EPA, DEC committed to revising 6 NYCRR Parts 244 and 245, and submitting a revised SIP submittal no later than July 14, 2017 to address EPA comments provided to the DEC via email on June 2, 2016. In the July 14, 2016 letter to EPA, DEC committed to revising the regulations in accordance with an enclosed document entitled ``NYSDEC Responses to EPA Comments on New York's Annual CSAPR Rules.'' In a November 28, 2016 email to DEC, EPA identified additional deficiencies. In a March 24, 2017 letter to EPA, DEC indicated that the State had commenced the regulatory process to correct additional deficiencies identified by EPA and committed to complete that process and submit a SIP revision by September 15, 2017. In a July 6, 2017 letter, DEC revised the date for correcting deficiencies and submitting a SIP revision to December 29, 2017. New York's December 1, 2015 SIP submission, and July 14, 2016, March 24, 2017, and July 6, 2017 commitment letters to EPA, as well as EPA's comments provided to the DEC on June 2, 2016, and November 28, 2016 can be found in the electronic docket for this proposed action at www.regulations.gov. B. EPA's Analysis of New York's Submittal 1. Timeliness and Completeness of New York's SIP Submittal New York's SIP revision seeks to establish state-determined allocations of CSAPR NOX Annual and SO2 Group 1 allowances, starting with the control periods in 2017. Under 40 CFR 52.38(a)(4)(i)(B) and 52.39(e)(1)(ii), the deadline for submission of state-determined allocations for the 2017 and 2018 control periods is June 1, 2016, which under 52.38(a)(4)(ii) and 52.39(e)(2) makes December 1, 2015, the deadline for submission to EPA of a complete SIP revision establishing state-determined allocations for those control periods. New York submitted its SIP revision to EPA by letter dated and delivered electronically on December 1, 2015, and EPA has determined that the submittal complies with the applicable minimum completeness criteria of 40 CFR part 51, Appendix V, Section 2.1. Because the New York SIP revision was timely submitted and meets the applicable completeness criteria, it meets the criteria under 40 CFR 52.38(a)(4)(ii) and 52.39(e)(2). 2. Methodology Covering All Allowances Potentially Requiring Allocation Sections 244.3 through 244.6, and 245.3 through 245.6 of the New York rules provide the allocation methodology adopted by New York in the SIP revision. Sections 244.3 through 244.6 replace the provisions of 40 CFR 97.411(a), 97.411(b)(1), and 97.412(a) for allocations of NOX Annual allowances; Sec. Sec. 245.3 through 245.6 replace the provisions of 40 CFR 97.611(a), 97.611(b)(1), and 97.612(a) for allocations of SO2 Group 1 allowances. New York's methodology addresses allocation of allowances that under the default allocation provisions for the Federal trading programs would be allocated to existing units as well as allowances that would be allocated to new units from the new unit set-asides established for New York under the Federal trading programs. Several provisions of New York's allocation methodology are inconsistent with the CSAPR SIP approval criteria, including as follows:Sections 244.4(b) and 245.4(b) indicate that if the DEC fails to submit allowance allocations, EPA will, for the applicable control period, allocate the allowances based on EGUs' proportional shares of the allocations for the previous control period. CSAPR rules do not allow a SIP revision under which EPA would be required to compute new allocations on a state's behalf. New York's rules do not include provisions for the disposition of any otherwise unallocated Indian country new unit set- aside allowances made available to the State for reallocation. EPA believes there is a lack of clarity regarding when EGUs would be considered ``existing'' or ``new'' units for purposes of determining whether they would receive allocations under Sec. Sec. 244.3 and 245.3 or under Sec. Sec. 244.5 and 245.5, respectively, and also which years of emissions data would be used to determine their allocations. For example, given EPA's understanding that New York generally intends for covered EGUs to be eligible to receive allowance allocations for each year of the programs either as existing units or as new units, the provisions in Sec. Sec. 244.3(b)(2) and 245.3(b)(2) basing allowance allocations to existing units on three years of historical emissions data, combined with the requirements under 40 CFR 52.38(a)(4)(i)(B) and 52.39(e)(1)(ii) for New York to submit its allocations for existing units to EPA up to four years in advance, are inconsistent with the provisions in Sec. Sec. 244.5(a)(3) and 245.5(a)(3) stating that EGUs may receive allocations from the new unit set-asides for no more than four years. In addition, Sec. Sec. 244.5(a) and 245.5(a) describe EGUs commencing operation after May 1, 2010 as eligible to receive allocations from the new unit set-asides, but that date appears to be irrelevant under the procedures set forth in the other rule provisions. 3. Assurance That Total Allocations Will Not Exceed the State Budget Sections 244.3, Transport Rule NO X Annual Trading Program budgets, and 245.3, Transport Rule SO2 Group 1 Trading Program budgets, set forth the total amounts of CSAPR NOX Annual allowances and CSAPR SO2 Group 1 allowances to be allocated to New York [[Page 40968]] units for each control period under the state trading programs. Sections 244.3 and 245.3 provide incorrect citations, and therefore incorrect CSAPR Phase 2 state budgets, for New York. Part 244 cites the North Carolina NOX Annual budget at 40 CFR 97.410(a)(15), which is 41,553 tons, instead of the New York NOX Annual budget at 40 CFR 97.410(a)(14), which is 21,722 tons. Part 245 cites the West Virginia SO2 Group 1 budget at 40 CFR 97.610(a)(15), which is 75,688 tons, instead of the New York SO2 Group 1 budget at 40 CFR 610(a)(9), which is 27,556 tons. In addition, New York's rules do not exclude the amounts of the Indian country new unit set-asides for New York (22 tons under the NOx Annual Trading Program and 28 tons under the SO2 Group 1 Trading Program) from the total amounts of allowances to be allocated by the State. As such, New York's rules do not currently provide assurance that total allocations will not exceed the amounts of New York's budgets under the Federal trading program rules. However, as noted below, on November 30, 2015, New York submitted allocations for existing units to EPA for the 2017 and 2018 control periods in accordance with the intent of its rules. Those allocation amounts were based on the correct New York budget amounts, not the higher budget amounts indicated by the incorrect CFR references in the state rules. Further, in response to EPA's comments on the SIP submission, New York subsequently submitted slightly revised allocations that properly exclude the amounts of the Indian country new unit set-asides from the total amounts allocated. On July 27, 2017, New York also submitted allocations for existing units to EPA for the 2019 and 2020 control periods that were based on the correct budget amounts. In light of the fact that the actual allocations submitted do not exceed the amounts of New York's budgets, EPA believes that the incorrect rule provisions do not preclude conditional approval of the SIP submission while New York works to correct the errors. 4. Timely Submission of State-Determined Allocations to EPA Sections 244.4 and 245.4 provide for allowance allocations for existing units to be submitted to EPA for the 2017 and 2018 control periods by December 1, 2015. New York in fact submitted such allocations to EPA on November 30, 2015 (and later adjusted the allocations slightly in order to address EPA's comments on the SIP submission). Sections 244.5(a)(7), and 245.5(a)(7) indicate that the DEC will submit State-determined NUSA allocations to the EPA by October 31 of the control period. The submission deadline of December 1, 2015 precedes the June 1, 2016 deadline discussed in section III above for existing units for the 2017 and 2018 control periods. New York, however, has not addressed intended deadlines to submit allocations to existing units for future control periods beyond 2018. New York's SIP revision meets the criteria under 40 CFR 52.38(a)(4)(i)(B) and 52.39(e)(1)(ii) for the 2017 and 2018 control periods only. EPA notes that New York's revised rules must conform with the requirements in 40 CFR 52.38(a)(4)(i)(B) and 52.39(e)(1)(ii), which require allocations to be submitted up to four years in advance of the control period for future years. In sections 244.5(a)(7), and 245.5(a)(7) New York has included an annual deadline of October 31st of the year of the control period for submission of NUSA allocations to EPA. The October 31st date is beyond the July 1st annual submission deadline for amounts allocated or auctioned to units other than existing units (also discussed in section III of this notice). New York's SIP revision therefore does not meet the timing requirements for annual submission of NUSA allocations under 40 CFR 52.38(a)(4)(i)(C) and 52.39(e)(1)(iii). 5. No Changes to Allocations Already Submitted to EPA or Recorded The New York rules include no provisions allowing alteration of allocations after the allocation amounts have been provided to EPA and no provisions allowing alteration of any allocations made and recorded by EPA under the federal trading program regulations, thereby meeting the condition under 40 CFR 52.38(a)(4)(i)(D) and 52.39(e)(1)(iv). 6. No Other Substantive Changes to Federal Trading Program Provisions It is apparent from the overall design of New York's rules that they are intended only to establish State-determined allowance allocation procedures and otherwise to coordinate with the federal trading program rules. However, in their current form the rules contain a number of provisions that require revision in order to not substantively modify the federal trading program provisions, including:As mentioned previously in section II of this notice, under an ``abbreviated'' SIP revision, a state may replace only the allowance allocation and/or applicability provisions of a CSAPR federal trading program. However, the applicability sections of the New York's NO X Annual and SO2 Group 1 rules, specifically Sec. Sec. 244.1(a) and 245.1(a), incorporate almost the entire CSAPR NOX Annual and SO2 Group 1 regulations, not just the provisions related to allocations. New York's 244.1(a) incorporates 40 CFR Sections 97.401 through 97.410 and 97.413 through 97.435. New York's 245.1(a) incorporates 40 CFR Sections 97.601 through 97.610 and 97.613 through 97.635. Similarly, in Sec. Sec. 244.2 and 245.2, certain terms used throughout the trading programs, including ``Administrator'' and ``Designated representative,'' are defined only with reference to New York's rules when they should be defined with reference to the federal regulations.New York's 6 NYCRR Sec. Sec. 244.1(d)(2) and 245.1(d)(2), include provisions for DEC to respond to petitions for determinations of applicability. Under 40 CFR 97.404 and 97.604, responding to petitions for determinations of applicability is an EPA responsibility. New York's rules use the term ``Transport Rule'' in Parts 244 and 245 instead of the term ``TR'' used in the CSAPR regulations as originally promulgated (i.e., ``Transport Rule NO X annual allowances'' instead of ``TR NOX Annual allowances''). In the CSAPR Update, EPA changed ``TR'' to ``CSAPR'' throughout the regulations for all the CSAPR trading programs. New York should update its rules to replace ``Transport Rule'' with ``TR'', or preferably with ``CSAPR'' to reflect the nomenclature changes from the CSAPR Update.\29\ --------------------------------------------------------------------------- \29\ 81 FR 74504 (October 26, 2016). ---------------------------------------------------------------------------EPA has identified several additional instances of incorrect cross-references in Parts 244, 245, and 200, as well as technical corrections needed to Parts 244, and 245, and 200 to reflect the changes from the CSAPR Update. The specific instances are identified in EPA's comments, which are available in the docket. Except as noted above, EPA has determined that the SIP revision meets the requirements of 40 CFR 52.38(a)(4) and 52.39(e) by making no substantive changes to the Federal trading program regulations beyond the provisions addressing allowance allocations. V. EPA's Proposed Action on New York's Submittal The EPA is proposing to conditionally approve the New York SIP revision submitted on December 1, 2015 concerning allocations to New York units of CSAPR NO X Annual allowances and CSAPR SO2 Group 1 allowances for [[Page 40969]] the control periods in 2017 and 2018, and future control periods beyond 2018. This rule proposes to conditionally approve into the New York SIP amendments to 6 NYCRR Parts 244 and 245 that incorporate CSAPR requirements into the State rules, and allows the DEC to allocate CSAPR allowances to regulated entities in New York. EPA is also proposing to conditionally approve the attendant revisions to 6 NYCRR Part 200 to update the list of referenced materials cited in the amended New York regulations. The proposed conditional approval of Parts 200, 244, and 245 is based upon DEC's commitment to make the necessary changes, identified in the July 14, 2016, March 4, 2017, and July 6, 2017 commitment letters, to New York's 6 NYCRR Part 244, ``Transport Rule NOX Annual Trading Program,'' Part 245, ``Transport Rule SO2 Group 1 Trading Program,'' and Part 200, ``General Provisions.'' See section IV B. of this notice concerning New York's budget, allowance allocation methodology, timing of submission of allocations, replaceable provisions of a CSAPR federal trading program under an abbreviated SIP, applicability determinations, and other substantive changes to the CSAPR Federal trading program regulations. Following the conditional approval of Part 200, Part 244, and Part 245, allocations of CSAPR NOX Annual allowances and CSAPR SO2 Group 1 allowances will be made according to the provisions of New York's SIP (as modified by the DEC's July 14, 2016, March 24, 2017, and July 6, 2017 commitment letters to EPA) instead of 40 CFR 97.411(a), 97.411(b)(1), 97.412(a), 97.611(a), 97.611(b)(1), and 97.612(a). EPA's action on this SIP revision does not alter any provisions of the Federal CSAPR NOX Annual Trading Program and the Federal CSAPR SO2 Group 1 Trading Program as applied to New York units other than the allowance allocation provisions, and the FIPs requiring the units to participate in the programs (as modified by this SIP revision) remain in place. EPA is proposing to conditionally approve Part 200, Part 244 and Part 245 because New York's rules (when modified by the DEC as indicated in its July 14, 2016, March 24, 2017, and July 6, 2017 commitment letters to EPA) will meet the requirements of the CAA and EPA's regulations for an abbreviated SIP revision and will replace EPA's default allocations of CSAPR emission allowances with state-determined allocations, as discussed in section IV.B above. Under CAA section 110(k)(4), the EPA may approve a SIP revision based on a commitment by a State to adopt specific enforceable measures by a date certain, but not later than one year after the date of final conditional approval. If the State fails to meet its commitment to submit a revised SIP by December 29, 2017 [i.e., the date of commitment from the state's July 6, 2017 letter], or if the EPA finds the State's revisions to be incomplete, or the EPA disapproves the State's revisions, the conditional approval will, by operation of law, become a disapproval. EPA would notify the State by letter that such action has occurred. At that time, the SIP revisions in question would not be part of the approved SIP. If that were to occur, EPA would subsequently publish a document in the Federal Register notifying the public that the conditional approval automatically converts to a disapproval.\30\ If, however, the State meets its commitment within the applicable timeframe, EPA would subsequently publish in the Federal Register a document notifying the public that EPA intends to convert the conditional approval to a full approval. --------------------------------------------------------------------------- \30\ In the event the conditional approval automatically reverts to a disapproval, the validity of allocations made pursuant to the SIP revision before the date of such reversion would not be affected. --------------------------------------------------------------------------- Because a FIP already in place satisfies New York's obligations to mitigate interstate transport air pollution, should a disapproval become finalized as noted above, the EPA will not be required to take further action. Additionally, since the SIP submission is not required in response to a SIP call under CAA section 110(k)(5), mandatory sanctions under CAA section 179 would not apply because the deficiencies are not with respect to a submission that is required under CAA title I part D. VI. Incorporation By Reference In this rule, the EPA is proposing action that will involve adoption of regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference revisions to 6 NYCRR Parts 200, 244, and 245 as previously discussed. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov, and/or at the EPA Region 2 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). VII. 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 CAA 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 proposed 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 proposed action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175, because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or [[Page 40970]] preempt tribal law. Thus Executive Order 13175 does not apply to this action. List of Subjects in 40 CFR Part 52 Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen Dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Authority: 42 U.S.C. 7401 et seq. Dated: August 18, 2017. Catherine R. McCabe, Acting Regional Administrator, Region 2. [FR Doc. 2017-18290 Filed 8-28-17; 8:45 am] BILLING CODE 6560-50-P
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Proposed Rules Federal Register
Vol. 82, No. 166
Tuesday, August 29, 2017
This section of the FEDERAL REGISTER ADDRESSES: Submit your comments, (EGUs) in New York are subject to
contains notices to the public of the proposed identified by Docket ID number EPA– CSAPR FIPs that require the units to
issuance of rules and regulations. The R02–OAR–2017–0425, at http:// participate in the federal CSAPR NOX
purpose of these notices is to give interested www.regulations.gov. Follow the online Annual Trading Program and the federal
persons an opportunity to participate in the instructions for submitting comments.
rule making prior to the adoption of the final
CSAPR SO2 Group 1 Trading Program.
rules.
Once submitted, comments cannot be CSAPR provides a process for the
edited or withdrawn. The EPA may submission and approval of SIP
publish any comment received to its revisions to replace certain provisions of
ENVIRONMENTAL PROTECTION public docket. Do not submit the CSAPR FIPs while the remaining
AGENCY electronically any information you FIP provisions continue to apply. This
consider to be Confidential Business type of CSAPR SIP is termed an
40 CFR Part 52 Information (CBI) or other information abbreviated SIP.
whose disclosure is restricted by statute.
[EPA–R02–OAR–2017–0425, FRL–9967–04–
Multimedia submissions (audio, video, The New York State Department of
Region 2] Environmental Conservation (DEC)
etc.) must be accompanied by a written
comment. The written comment is amended portions of Title 6 of the New
Approval of Air Quality Implementation York Codes, Rules and Regulations (6
Plans; New York; Cross-State Air considered the official comment and
should include discussion of all points NYCRR) in order to incorporate CSAPR
Pollution Rule; NOX Annual and SO2 requirements into the State’s rules and
Group 1 Trading Programs you wish to make. The EPA will
generally not consider comments or allow the DEC to allocate CSAPR
AGENCY: Environmental Protection comment contents located outside of the allowances to regulated entities in New
Agency (EPA). primary submission (i.e., on the web, York. 6 NYCRR Part 244, ‘‘CAIR NOX
ACTION: Proposed rule. cloud, or other file sharing system). For Annual Trading Program,’’ has been
additional submission methods, the full repealed and replaced in its entirety
SUMMARY: The Environmental Protection EPA public comment policy, with a new rule, 6 NYCRR Part 244,
Agency (EPA) is proposing to information about CBI or multimedia ‘‘Transport Rule NOX Annual Trading
conditionally approve a revision to the submissions, and general guidance on Program.’’ 6 NYCRR Part 245, ‘‘CAIR
New York State Implementation Plan making effective comments, please visit SO2 Trading Program,’’ has also been
(SIP) addressing requirements of the http://www2.epa.gov/dockets/ repealed and replaced in its entirety
Cross-State Air Pollution Rule (CSAPR). commenting-epa-dockets. with a new rule, 6 NYCRR Part 245,
Under the CSAPR, large electricity FOR FURTHER INFORMATION CONTACT: ‘‘Transport Rule SO2 Group 1 Trading
generating units in New York are subject Kenneth Fradkin, Air Programs Branch, Program.’’ Attendant revisions were
to Federal Implementation Plans (FIPs) Environmental Protection Agency, 290 made to 6 NYCRR Part 200, ‘‘General
requiring the units to participate in Broadway, 25th Floor, New York, New Provisions,’’ to update the list of
CSAPR federal trading programs for York 10007–1866, (212) 637–3702, or by referenced materials that are cited in the
annual emissions of nitrogen oxides email at fradkin.kenneth@epa.gov. amended New York regulations. EPA is
(NOX), ozone season emissions of NOX, SUPPLEMENTARY INFORMATION: proposing to conditionally approve into
and annual emissions of sulfur dioxide the SIP the revised versions of 6 NYCRR
(SO2). This action proposes to Table of Contents Parts 200, 244 and 245.
conditionally approve into New York’s I. What is EPA’s proposed action?
SIP the State’s regulations that replace This SIP revision is being proposed
II. Background on CSAPR and CSAPR-
the default allowance allocation for conditional approval as opposed to
Related SIP Revisions
provisions of the CSAPR federal trading III. Criteria for Approval of CSAPR-Related a full approval because of several
programs for annual NOX and SO2 SIP Revisions deficiencies that must be addressed as
emissions. At this time, EPA is not IV. New York’s Submittal and EPA’s Analysis discussed in section IV of this notice.
V. EPA’s Proposed Action on New York’s The proposed conditional approval of
taking action on the portion of New
Submittal portions of New York’s SIP submittal is
York’s SIP submittal addressing NOX VI. Incorporation by Reference
ozone season emissions. EPA is conditioned on DEC meeting the
VII. Statutory and Executive Order Reviews
proposing to conditionally approve New commitment, articulated in its letters
York’s regulations for annual NOX and I. What is EPA’s proposed action? dated July 14, 2016, March 4, 2017, and
SO2 emissions because, while the Pursuant to Section 110(k)(4) of the July 6, 2017, to make the necessary
submitted rules do not fully conform to Clean Air Act (CAA), EPA is proposing revisions to 6 NYCRR Parts 200, 244,
CSAPR, New York is in the process of to conditionally approve portions of and 245 to meet the requirements of the
making further revisions to its rules and New York’s December 1, 2015 SIP CAA and EPA’s regulations for approval
jstallworth on DSKBBY8HB2PROD with PROPOSALS
has provided a commitment to finalize submittal concerning CSAPR 1 trading of an abbreviated SIP revision to replace
and submit them by December 29, 2017. programs for annual emissions of NOX EPA’s default allocations of CSAPR
Upon timely meeting of this and SO2. Large Electric Generating Units emission allowances with state-
commitment, EPA will propose to determined allocations. The July 6, 2017
convert the conditional approval of the 1 Federal Implementation Plans; Interstate letter from DEC committed to
SIP revision to a full approval. Transport of Fine Particulate Matter and Ozone and submitting a SIP revision by December
Correction of SIP Approvals, 76 FR 48208 (August
DATES: Comments must be received on 8, 2011) (codified as amended at 40 CFR 52.38 and
29, 2017. The date supersedes the dates
or before September 28, 2017. 52.39 and 40 CFR part 97). identified in the July 14, 2016, and
VerDate Sep<11>2014 15:07 Aug 28, 2017 Jkt 241001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\29AUP1.SGM 29AUP1](https://thefederalregister.org/doc/82_FR_41129/page/1.svg)
![40964 Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Proposed Rules
March 24, 2017 letters.2 Once EPA 243 to conform with the final CSAPR trading programs or state emissions
determines that the DEC has satisfied Update. For this reason, EPA is trading programs integrated with the
these conditions and EPA approves the proposing to act at this time only on 6 federal programs.4 Through such a SIP
revisions (after EPA notice and NYCRR Parts 200, 244 and 245. revision, a state may replace EPA’s
comment), EPA shall remove the Section II of this document default provisions for allocating
conditional approval and this SIP summarizes relevant aspects of the emission allowances among the state’s
revision will at that time receive full CSAPR federal trading programs and units, employing any state-selected
approval status. The conditionally FIPs as well as the range of methodology to allocate or auction the
approved SIP submission will remain opportunities states have to submit SIP allowances, subject to timing criteria
part of the SIP until EPA takes further revisions to modify or replace the FIP and limits on overall allowance
action. If New York fails to meet its requirements while continuing to rely quantities. In the case of CSAPR’s
commitment to submit a revised SIP by on CSAPR’s trading programs to address federal trading programs for ozone-
December 29, 2017 [i.e., the date of the states’ obligations to mitigate season NOX emissions (or integrated
commitment from the state’s July 6, interstate air pollution. Section III state trading programs), a state may also
2017 letter], the conditional approval is describes the specific criteria for expand trading program applicability to
treated as a disapproval. approval of such SIP revisions. Section include certain smaller EGUs.5 If a state
This action proposes to conditionally IV contains EPA’s analysis of New wants to replace CSAPR FIP
approve into New York’s SIP state- York’s SIP submittal, and Section V sets requirements with SIP requirements
determined allowance allocation forth EPA’s action on the submittal. under which the state’s units participate
procedures for annual NOX and SO2 II. Background on CSAPR and CSAPR- in a state trading program that is
allowances that would replace EPA’s Related SIP Revisions integrated with and identical to the
default allocation procedures for the federal trading program even as to the
control periods in 2017 and beyond. EPA issued CSAPR in July 2011 to
allocation and applicability provisions,
The proposed approval of this SIP address the requirements of CAA
the state may submit a SIP revision for
revision does not alter any provision of section 110(a)(2)(D)(i)(I) concerning
that purpose as well. However, no
either the CSAPR NOX Annual Trading interstate transport of air pollution. As
emissions budget increases or other
Program or the CSAPR SO2 Group 1 amended (including the 2016 CSAPR
substantive changes to the trading
Trading Program as applied to New Update), CSAPR requires 27 Eastern
program provisions are allowed. A state
York units other than the allowance states to limit their statewide emissions
whose units are subject to multiple
allocation provisions, and the FIP of SO2 and/or NOX in order to mitigate
CSAPR FIPs and federal trading
provisions requiring those units to transported air pollution unlawfully
programs may submit SIP revisions to
participate in the programs (as modified impacting other states’ ability to attain
or maintain four NAAQS: The 1997 modify or replace either some or all of
by this SIP revision) remain in place. those FIP requirements.
New York also repealed 6 NYCRR Part annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, the 1997 Ozone NAAQS, States can submit two basic forms of
243, ‘‘CAIR NOX Ozone Season Trading CSAPR-related SIP revisions effective
Program,’’ and replaced it in its entirety and the 2008 Ozone NAAQS. The
CSAPR emissions limitations are for emissions control periods in 2017 or
with a new rule, 6 NYCRR Part 243, later years.6 Specific criteria for
‘‘Transport Rule NOX Ozone Season defined in terms of maximum statewide
‘‘budgets’’ for emissions of annual SO2, approval of each form of SIP revision
Trading Program,’’ which was included are set forth in the CSAPR regulations,
in New York’s December 1, 2015 SIP annual NOX, and/or ozone-season NOX
by each covered state’s large EGUs. The as described in section III below. Under
submittal. EPA is not proposing to act the first alternative—an ‘‘abbreviated’’
at this time on the portion of New CSAPR state budgets are implemented
in two phases of generally increasing SIP revision—a state may submit a SIP
York’s SIP submittal addressing 6 revision that upon approval replaces the
NYCRR Part 243. Since New York’s stringency, with the Phase 1 budgets
applying to emissions in 2015 and 2016 default allowance allocation and/or
December 1, 2015 submission, EPA has applicability provisions of a CSAPR
finalized the CSAPR Update rule 3 to and the Phase 2 (and CSAPR Update)
budgets applying to emissions in 2017 federal trading program for the state.7
address Eastern states’ interstate air Approval of an abbreviated SIP revision
and later years. As a mechanism for
pollution mitigation obligations with leaves the corresponding CSAPR FIP
achieving compliance with the
regard to the 2008 Ozone National and all other provisions of the relevant
emissions limitations, CSAPR
Ambient Air Quality Standard federal trading program in place for the
establishes five federal emissions
(NAAQS). Among other things, starting state’s units.
trading programs: A program for annual
in 2017 the CSAPR Update requires Under the second alternative—a
NOX emissions, two geographically
New York EGUs to participate in the ‘‘full’’ SIP revision—a state may submit
separate programs for annual SO2
new CSAPR NOX Ozone Season Group a SIP revision that upon approval
emissions, and two geographically
2 Trading Program instead of the earlier
separate programs for ozone-season NOX
CSAPR NOX Ozone Season Trading 4 See 40 CFR 52.38, 52.39. States also retain the
emissions. CSAPR also establishes FIP
Program (now renamed the ‘‘Group 1’’ ability to submit SIP revisions to meet their
requirements applicable to the large transport-related obligations using mechanisms
program) and replaces the ozone season
EGUs in each covered state. The CSAPR other than the CSAPR federal trading programs or
budget for New York with a lower integrated state trading programs.
FIP provisions require each state’s EGUs
budget developed to address the revised 5 States covered by both the CSAPR Update and
to participate in up to three of the five
jstallworth on DSKBBY8HB2PROD with PROPOSALS
and more stringent 2008 Ozone NAAQS. the NOX SIP Call have the additional option to
CSAPR trading programs. expand applicability under the CSAPR NOX Ozone
In DEC’s July 14, 2016 commitment CSAPR includes provisions under Season Group 2 Trading Program to include non-
letter to EPA, New York indicated that which states may submit and EPA will EGUs that would have participated in the former
the State would revise 6 NYCRR Part NOX Budget Trading Program.
approve SIP revisions to modify or
6 CSAPR also provides for a third, more
2 In their July 6, 2017 letter, the DEC indicated
replace the CSAPR FIP requirements
streamlined form of SIP revision that is effective
they needed additional time to complete their while allowing states to continue to only for control periods in 2016 and is not relevant
rulemaking. meet their transport-related obligations here. See § 52.38(a)(3), (b)(3), (b)(7); § 52.39(d), (g).
3 81 FR 74504 (October 26, 2016). using either CSAPR’s federal emissions 7 § 52.38(a)(4), (b)(4), (b)(8); § 52.39(e), (h).
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![Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Proposed Rules 40969
the control periods in 2017 and 2018, Under CAA section 110(k)(4), the EPA VII. Statutory and Executive Order
and future control periods beyond 2018. may approve a SIP revision based on a Reviews
This rule proposes to conditionally commitment by a State to adopt specific Under the Clean Air Act, the
approve into the New York SIP enforceable measures by a date certain, Administrator is required to approve a
amendments to 6 NYCRR Parts 244 and but not later than one year after the date SIP submission that complies with the
245 that incorporate CSAPR of final conditional approval. If the State provisions of the CAA and applicable
requirements into the State rules, and fails to meet its commitment to submit Federal regulations. 42 U.S.C. 7410(k);
allows the DEC to allocate CSAPR a revised SIP by December 29, 2017 [i.e., 40 CFR 52.02(a). Thus, in reviewing SIP
allowances to regulated entities in New the date of commitment from the state’s submissions, EPA’s role is to approve
York. EPA is also proposing to July 6, 2017 letter], or if the EPA finds state choices, provided that they meet
conditionally approve the attendant the State’s revisions to be incomplete, or the criteria of the Clean Air Act.
revisions to 6 NYCRR Part 200 to update the EPA disapproves the State’s Accordingly, this proposed action
the list of referenced materials cited in revisions, the conditional approval will, merely approves State law as meeting
the amended New York regulations. by operation of law, become a Federal requirements and does not
The proposed conditional approval of disapproval. EPA would notify the State impose additional requirements beyond
Parts 200, 244, and 245 is based upon by letter that such action has occurred. those imposed by State law. For that
DEC’s commitment to make the At that time, the SIP revisions in reason, this proposed action:
necessary changes, identified in the July question would not be part of the • Is not a ‘‘significant regulatory
14, 2016, March 4, 2017, and July 6, approved SIP. If that were to occur, EPA action’’ subject to review by the Office
2017 commitment letters, to New York’s would subsequently publish a of Management and Budget under
6 NYCRR Part 244, ‘‘Transport Rule Executive Order 12866 (58 FR 51735,
document in the Federal Register
NOX Annual Trading Program,’’ Part October 4, 1993);
notifying the public that the conditional
245, ‘‘Transport Rule SO2 Group 1 • does not impose an information
approval automatically converts to a
Trading Program,’’ and Part 200, collection burden under the provisions
disapproval.30 If, however, the State
‘‘General Provisions.’’ See section IV B. of the Paperwork Reduction Act (44
meets its commitment within the
of this notice concerning New York’s U.S.C. 3501 et seq.);
applicable timeframe, EPA would
budget, allowance allocation
subsequently publish in the Federal • is certified as not having a
methodology, timing of submission of significant economic impact on a
allocations, replaceable provisions of a Register a document notifying the
public that EPA intends to convert the substantial number of small entities
CSAPR federal trading program under under the Regulatory Flexibility Act (5
an abbreviated SIP, applicability conditional approval to a full approval.
U.S.C. 601 et seq.);
determinations, and other substantive Because a FIP already in place • does not contain any unfunded
changes to the CSAPR Federal trading satisfies New York’s obligations to mandate or significantly or uniquely
program regulations. mitigate interstate transport air affect small governments, as described
Following the conditional approval of pollution, should a disapproval become in the Unfunded Mandates Reform Act
Part 200, Part 244, and Part 245, finalized as noted above, the EPA will of 1995 (Pub. L. 104–4);
allocations of CSAPR NOX Annual not be required to take further action. • does not have Federalism
allowances and CSAPR SO2 Group 1 Additionally, since the SIP submission implications as specified in Executive
allowances will be made according to is not required in response to a SIP call Order 13132 (64 FR 43255, August 10,
the provisions of New York’s SIP (as under CAA section 110(k)(5), mandatory 1999);
modified by the DEC’s July 14, 2016, sanctions under CAA section 179 would • is not an economically significant
March 24, 2017, and July 6, 2017 not apply because the deficiencies are regulatory action based on health or
commitment letters to EPA) instead of not with respect to a submission that is safety risks subject to Executive Order
40 CFR 97.411(a), 97.411(b)(1), required under CAA title I part D. 13045 (62 FR 19885, April 23, 1997);
97.412(a), 97.611(a), 97.611(b)(1), and • is not a significant regulatory action
97.612(a). EPA’s action on this SIP VI. Incorporation By Reference subject to Executive Order 13211 (66 FR
revision does not alter any provisions of In this rule, the EPA is proposing 28355, May 22, 2001);
the Federal CSAPR NOX Annual action that will involve adoption of • is not subject to requirements of
Trading Program and the Federal regulatory text that includes section 12(d) of the National
CSAPR SO2 Group 1 Trading Program as Technology Transfer and Advancement
incorporation by reference. In
applied to New York units other than Act of 1995 (15 U.S.C. 272 note) because
accordance with requirements of 1 CFR
the allowance allocation provisions, and application of those requirements would
51.5, the EPA is proposing to
the FIPs requiring the units to be inconsistent with the Clean Air Act;
incorporate by reference revisions to 6
participate in the programs (as modified and
NYCRR Parts 200, 244, and 245 as
by this SIP revision) remain in place. • does not provide EPA with the
EPA is proposing to conditionally previously discussed. The EPA has
discretionary authority to address, as
approve Part 200, Part 244 and Part 245 made, and will continue to make, these appropriate, disproportionate human
because New York’s rules (when materials generally available through health or environmental effects, using
modified by the DEC as indicated in its www.regulations.gov, and/or at the EPA practicable and legally permissible
July 14, 2016, March 24, 2017, and July Region 2 Office (please contact the methods, under Executive Order 12898
jstallworth on DSKBBY8HB2PROD with PROPOSALS
6, 2017 commitment letters to EPA) will person identified in the FOR FURTHER (59 FR 7629, February 16, 1994).
meet the requirements of the CAA and INFORMATION CONTACT section of this In addition, this rule does not have
EPA’s regulations for an abbreviated SIP preamble for more information). tribal implications as specified by
revision and will replace EPA’s default Executive Order 13175, because the SIP
30 In the event the conditional approval
allocations of CSAPR emission is not approved to apply in Indian
automatically reverts to a disapproval, the validity
allowances with state-determined of allocations made pursuant to the SIP revision
country located in the State, and EPA
allocations, as discussed in section IV.B before the date of such reversion would not be notes that it will not impose substantial
above. affected. direct costs on tribal governments or
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![40970 Federal Register / Vol. 82, No. 166 / Tuesday, August 29, 2017 / Proposed Rules
preempt tribal law. Thus Executive comment on any aspect of previous FOR FURTHER INFORMATION CONTACT: For
Order 13175 does not apply to this rulemakings, including the November questions about this proposed action,
action. 25, 2011, April 15, 2013, and November contact Mr. Brian Storey, Office of Air
13, 2014, proposals. Quality Planning and Standards, Sector
List of Subjects in 40 CFR Part 52
DATES: The EPA must receive written Policies and Programs Division (D243–
Environmental protection, 04), Environmental Protection Agency,
Administrative practice and procedure, comments on this proposed rule on or
before October 13, 2017. Research Triangle Park, NC 27711;
Air pollution control, Incorporation by telephone number: (919) 541–1103; fax
reference, Intergovernmental relations, Public Hearing. If a public hearing is
number: (919) 541–5450; email address:
Nitrogen Dioxide, Ozone, Particulate requested by September 5, 2017, then
storey.brian@epa.gov.
matter, Reporting and recordkeeping we will hold a public hearing on
September 13, 2017. The last day to pre- SUPPLEMENTARY INFORMATION: Docket.
requirements, Sulfur oxides. The EPA has established a docket for
register in advance to speak at the
Authority: 42 U.S.C. 7401 et seq. this rulemaking under Docket ID No.
public hearing will be September 11,
Dated: August 18, 2017. 2017. EPA–HQ–OAR–2010–1042. All
Catherine R. McCabe, documents in the docket are listed in
ADDRESSES: Submit your comments, the Regulations.gov index. Although
Acting Regional Administrator, Region 2.
identified by Docket ID No. EPA–HQ– listed in the index, some information is
[FR Doc. 2017–18290 Filed 8–28–17; 8:45 am]
OAR–2010–1042, at http:// not publicly available, e.g., CBI or other
BILLING CODE 6560–50–P www.regulations.gov. Follow the online information whose disclosure is
instructions for submitting comments. restricted by statute. Certain other
Once submitted, comments cannot be material, such as copyrighted material,
ENVIRONMENTAL PROTECTION
edited or withdrawn from is not placed on the Internet and will be
AGENCY
Regulations.gov. The EPA may publish publicly available only in hard copy.
40 CFR Part 63 any comment received to its public Publicly available docket materials are
docket. Do not submit electronically any available either electronically at https://
[EPA–HQ–OAR–2010–1042; FRL–9967–01– information you consider to be www.regulations.gov or in hard copy at
OAR] Confidential Business Information (CBI) the EPA Docket Center, Room 3334,
RIN 2060–AT13 or other information whose disclosure is EPA WJC West Building, 1301
restricted by statute. Multimedia Constitution Avenue NW, Washington,
National Emission Standards for submissions (audio, video, etc.) must be DC. The Public Reading Room is open
Hazardous Air Pollutants for Wool accompanied by a written comment. from 8:30 a.m. to 4:30 p.m., Monday
Fiberglass Manufacturing; Rotary Spin The written comment is considered the through Friday, excluding legal
Lines Technology Review official comment and should include holidays. The telephone number for the
AGENCY: Environmental Protection discussion of all points you wish to Public Reading Room is (202) 566–1744,
Agency (EPA). make. The EPA will generally not and the telephone number for the EPA
consider comments or comment Docket Center is (202) 566–1742.
ACTION: Proposed rule.
contents located outside of the primary Instructions. Direct your comments to
SUMMARY: In this action, the submission (i.e., on the Web, cloud, or Docket ID No. EPA–HQ–OAR–2010–
Environmental Protection Agency (EPA) other file sharing system). For 1042. The EPA’s policy is that all
is proposing amendments to previous additional submission methods, the full comments received will be included in
proposals to the National Emission EPA public comment policy, the public docket without change and
Standards for Hazardous Air Pollutants information about CBI or multimedia may be made available online at https://
(NESHAP) for the Wool Fiberglass submissions, and general guidance on www.regulations.gov, including any
Manufacturing source category. In the making effective comments, please visit personal information provided, unless
July 29, 2015, final rulemaking, the EPA http://www2.epa.gov/dockets/ the comment includes information
deferred action on previously proposed commenting-epa-dockets. claimed to be CBI or other information
formaldehyde, methanol and phenol Public Hearing. If a hearing is whose disclosure is restricted by statute.
emission limits from rotary spin (RS) requested, it will be held at the EPA Do not submit information that you
lines at wool fiberglass manufacturing WJC East Building, 1201 Constitution consider to be CBI or otherwise
facilities. In this action, the EPA is Avenue NW, Washington, DC 20004. If protected through https://
proposing to readopt the existing a public hearing is requested, then we www.regulations.gov or email. The
emission limits for formaldehyde, to will provide additional details about the https://www.regulations.gov Web site is
establish emission limits for methanol, public hearing on our Web site at an ‘‘anonymous access’’ system, which
and to establish a work practice https://www.epa.gov/stationary-sources- means the EPA will not know your
standard for phenol emissions from air-pollution/wool-fiberglass- identity or contact information unless
bonded RS lines at wool fiberglass manufacturing-national-emissions- you provide it in the body of your
manufacturing facilities. In addition, the standards. To request a hearing, to comment. If you send an email
EPA is proposing amendments to the register to speak at a hearing, or to comment directly to the EPA without
emission limits promulgated on July 29, inquire if a hearing will be held, please going through https://
2015, for formaldehyde, methanol, and contact Aimee St. Clair at (919) 541– www.regulations.gov, your email
jstallworth on DSKBBY8HB2PROD with PROPOSALS
phenol from flame attenuation (FA) 1063 or by email at stclair.aimee@ address will be automatically captured
lines at wool fiberglass manufacturing epa.gov. The EPA does not intend to and included as part of the comment
facilities. The EPA is only taking publish any future notices in the that is placed in the public docket and
comments on the specific proposed Federal Register regarding a public made available on the Internet. If you
requirements and revisions set forth in hearing on this proposed action and submit an electronic comment, the EPA
this proposed rulemaking, which are directs all inquiries regarding a hearing recommends that you include your
based on information contained in this to the Web site and contact person name and other contact information in
proposal. The EPA is not taking identified above. the body of your comment and with any
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Document Created: 2017-08-29 01:57:59
Document Modified: 2017-08-29 01:57:59
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before September 28, 2017. | |
| Contact | Kenneth Fradkin, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3702, or by email at [email protected] | |
| FR Citation | 82 FR 40963 | |
| CFR Associated | Environmental Protection; Administrative Practice and Procedure; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements and Sulfur Oxides |
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