Outer Continental Shelf Air Regulations Update To Include New York State Requirements
The Environmental Protection Agency (EPA) is proposing to update a portion of the Outer Continental Shelf (OCS) Air Regulations. Requirements applying to OCS sources located wit...
The Environmental Protection Agency (EPA) is proposing to update a portion of the Outer Continental Shelf (OCS) Air Regulations. Requirements applying to OCS sources located within 25 miles of states' seaward boundaries must be updated periodically to remain consistent with the requirements of the corresponding onshore area (COA), as mandated by section 328(a)(1) of the Clean Air Act (CAA). The portion of the OCS air regulations that is being updated pertains to the requirements for OCS sources for which the State of New York is the COA. The intended effect of approving the OCS requirements for the State of New York is to regulate emissions from OCS sources in accordance with the requirements onshore. The requirements discussed below are proposed to be incorporated by reference into the Code of Federal Regulations and are listed in the appendix to the OCS air regulations.
DATES:
Written comments must be received on or before June 21, 2022.
ADDRESSES:
Submit your comments, identified by Docket ID Number EPA-
( printed page 30850)
R02-OAR-2022-0400 at
https://www.regulations.gov.
Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. 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
https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Viorica Petriman, Air Programs Branch, Permitting Section, U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York 10007, (212) 637-4021,
petriman.viorica@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background and Purpose
II. The EPA's Evaluation
III. The EPA's Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background and Purpose
On September 4, 1992, EPA promulgated 40 CFR part 55 (“Part 55”),[1]
which established requirements to control air pollution from Outer Continental Shelf (OCS) sources in order to attain and maintain Federal and State ambient air quality standards (AAQS) and to comply with the provisions of part C of title I of the Clean Air Act (CAA). The Part 55 regulations apply to all OCS sources offshore of the states except those located in the Gulf of Mexico west of 87.5 degrees longitude.
Section 328(a) of the CAA requires that for such OCS sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the corresponding onshore area (COA). Because the OCS requirements are based on onshore requirements, and onshore requirements may change, CAA section 328(a)(1) requires that the EPA update the OCS requirements as necessary to maintain consistency with onshore requirements. To comply with this statutory mandate, the EPA must incorporate by reference into Part 55 all relevant state rules in effect for onshore sources, so they can be applied to OCS sources located offshore. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into 40 CFR part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the CAA. Inclusion in the OCS rule does not imply that a rule meets the requirements of the CAA for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.
40 CFR 55.12 specifies certain times at which part 55's incorporation by reference of a state's rules must be updated. One time such a “consistency update” must occur is when any OCS source applicant submits a Notice of Intent (NOI) under 40 CFR 55.4 for a new or a modified OCS source. 40 CFR 55.4(a) requires that any OCS source applicant must submit to EPA an NOI before performing any physical change or change in method of operation that results in an increase in emissions. EPA must conduct any necessary consistency update when it receives an NOI, and prior to receiving any application for a preconstruction permit from the OCS source applicant. 40 CFR 55.6(b)(2) and 55.12(f). This proposed action is being taken in response to the submittal of an NOI to EPA, with copies provided to certain state agencies, by March 14, 2022, by Empire Wind Offshore, LLC, which proposes to submit an OCS permit application for the construction of a new OCS source (a wind energy project) about 14 miles offshore New York.
II. The EPA's Evaluation
In updating 40 CFR part 55, the EPA reviewed the New York State Department of Environmental Conservation (“NYSDEC”) air rules currently in effect, to ensure that they are rationally related to the attainment or maintenance of Federal and State AAQS or part C of title I of the CAA, that they are not designed expressly to prevent exploration and development of the OCS, and that they are applicable to OCS sources.
See40 CFR 55.1. The EPA has also evaluated the rules to ensure they are not arbitrary and capricious.
See40 CFR 55.12(e). The EPA has excluded New York's administrative or procedural rules,[2]
and requirements that regulate toxics which are not related to the attainment and maintenance of Federal and State AAQS.
III. The EPA's Proposed Action
In today's action, the EPA is proposing to update the “New York” section of Appendix A to 40 CFR part 55 to incorporate by reference relevant New York air pollution control rules that are found at various locations in Chapter III of Title 6 of the New York Codes, Rules and Regulations (NYCRR), and are currently in effect. The specific provisions being incorporated by reference are identified in the proposed regulatory language at the end of this proposed rule.
IV. Incorporation by Reference
In this proposed rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the NYSDEC air rules that are applicable to OCS sources and which are currently in effect. These regulations are described in Section III (“The EPA's Proposed Action”) of this preamble. The EPA has made, and will continue to make, these materials generally available through
www.regulations.gov
and at the EPA Region 2 Office. Please contact the person identified in the
FOR FURTHER INFORMATION CONTACT
section of this preamble for more information.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42
( printed page 30851)
U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, the EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by the EPA.
This action is not a “significant regulatory action” under the terms of Executive Orders (E.O.) 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011) and is therefore not subject to review under the E.O.
b. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden under PRA because this action only updates the state rules that are incorporated by reference into 40 CFR part 55, Appendix A. OMB has previously approved the information collection activities contained in the existing regulations at 40 CFR part 55 and, by extension, this update to 40 CFR part 55, and has assigned OMB control number 2060-0249. This action does not impose a new information burden under PRA because this action only updates the state rules that are incorporated by reference into 40 CFR part 55, Appendix A.
c. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant impact on a substantial number of small entities under the RFA. This proposed rule does not impose any requirements or create impacts on small entities. This proposed consistency update under CAA section 328 will not create any new requirements but simply proposes to update the State requirements incorporated by reference into 40 CFR part 55 to match the current State requirements.
d. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate or significantly or uniquely affect small governments as described in UMRA, 2 U.S.C. 1531-1538. The action imposes no enforceable duty on any state, local or tribal governments.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, nor does it impose substantial direct costs on tribal governments, nor preempt tribal law. It merely updated the State law incorporated by reference into 40 CFR part 55 to match current State requirements.
g. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 and simply proposes to update the State requirements incorporated by reference into 40 CFR part 55 to match the current State requirements.
h. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use.
i. National Technology Transfer and Advancement Act
This rulemaking 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.
j. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population
The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health, or environmental effects, using practicable and legally permissible methods.
Requirements that apply to OCS sources located within 25 miles of States' seaward boundaries, by State.
* * * * *
(e) * * *
(16) * * *
(i) * * *
(A) State of New York Requirements Applicable to OCS Sources, March 10, 2022.
* * * * *
3. Appendix A to 40 CFR part 55 is amended by revising the entry for “New York” to read as follows:
Appendix A to Part 55—Listing of State and Local Requirements Incorporated by Reference Into Part 55, by State
* * * * *
New York
(a) State requirements.
(1) The following State of New York requirements are applicable to OCS Sources, as of March 10, 2022. New York Environmental Conservation Law—
( printed page 30852)
Department of Environmental Conservation. The following sections of Title 6, Chapter III:
Subchapter A. Prevention and Control of Air Contamination and Air Pollution
6 NYCRR 219-2. Municipal and Private Solid Waste Incineration Facilities (effective 5/21/2005)
6 NYCRR 219-10. Reasonably Available Control Technology (RACT) For Oxides of Nitrogen (NOX) at Municipal and Private Solid Waste Incineration Units (effective 3/15/2020)
Part 221. Asbestos-Containing Surface Coating Material (effective 9/29/1972)
Part 222. Distributed Generation Sources (effective 3/26/2020)
Part 225. Fuel Consumption and Use
6 NYCRR 225-1. Fuel Composition and Use—Sulfur Limitations (effective 2/4/2021)
6 NYCRR 225-2. Fuel Composition and Use—Waste Oil as a Fuel (effective 4/2/2020)
6 NYCRR 225-3. Fuel Composition and Use—Gasoline (effective 11/4/2001)
6 NYCRR 225-4. Motor Vehicle Diesel Fuel (effective 5/8/2005)
Part 226. Solvent Metal Cleaning Processes and Industrial Cleaning Solvents (effective 11/1/2019)
6 NYCRR 227-2. Reasonably Available Control Technology (RACT) for Major Facilities of Oxides of Nitrogen (NOX) (effective 12/7/2019)
6 NYCRR 227-3. Ozone Season Oxides of Nitrogen (NOx) Emission Limits for Simple Cycle and Regenerative Combustion Turbines (effective 1/16/2020)
Part 228. Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers (effective 6/5/2013)
Part 229. Petroleum and Volatile Organic Liquid Storage and Transfer (effective 4/4/1993)
Part 230. Gasoline Dispensing Sites and Transport Vehicles (effective 2/11/2021)
Part 231. New Source Review for New and Modified Facilities
6 NYCRR 231-3. General Provisions (effective 2/25/2021)
6 NYCRR 231-4. Definitions (effective 2/25/2021)
6 NYCRR 231-5. New Major Facilities and Modifications to Existing Non-Major Facilities in Nonattainment Areas, and Attainment Areas of the State Within the Ozone Transport Region (effective 2/25/2021)
6 NYCRR 231-6. Modifications to Existing Major Facilities in Nonattainment Areas and Attainment Areas of the State Within the Ozone Transport Region (effective 2/25/2021)
6 NYCRR 231-7. New Major Facilities and Modifications to Existing Non-Major Facilities in Attainment Areas (Prevention of Significant Deterioration) (effective 2/25/2021)
6 NYCRR 231-8. Modifications to Existing Major Facilities in Attainment Areas (Prevention of Significant Deterioration) (effective 2/25/2021)
1.
The reader may refer to the Proposed Rulemaking, December 5, 1991 (56 FR 63774), and the preamble to the final rule promulgated September 4, 1992 (57 FR 40792) for further background and information on the OCS regulations.
2.
Each COA which has been delegated the authority to implement and enforce part 55 will use its administrative and procedural rules as onshore. However, in those instances where EPA has not delegated authority to implement and enforce part 55, as is the case in New York, EPA will use its own administrative and procedural requirements to implement the substantive requirements.
See 40 CFR 55.14(c)(4).
Use this for formal legal and research references to the published document.
87 FR 30849
Web Citation
Suggested Web Citation
Use this when citing the archival web version of the document.
“Outer Continental Shelf Air Regulations Update To Include New York State Requirements,” thefederalregister.org (May 20, 2022), https://thefederalregister.org/documents/2022-10794/outer-continental-shelf-air-regulations-update-to-include-new-york-state-requirements.