[Federal Register: July 21, 2005 (Volume 70, Number 139)]
[Proposed Rules]
[Page 42021-42023]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy05-28]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[Region 2 Docket No. R02-OAR-2005-NY-0003, FRL-7942-6]
Approval and Promulgation of Implementation Plans; New York State
Implementation Plan Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency is proposing to approve a
revision to the New York State Implementation Plan (SIP) concerning New
York's permitting program. The
[[Page 42022]]
SIP revision consists of amendments to Title 6 of the New York Codes,
Rules and Regulations, Part 201, ``Permits and Certificates.'' The
intended effect of this proposal is to incorporate administrative
changes to New York's permitting program into the SIP.
DATES: Comments must be received on or before August 22, 2005.
ADDRESSES: Submit your comments, identified by Regional Material in
EDocket (RME) ID Number R02-OAR-2005-NY-0003 by one of the following
methods: Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
1. Agency Web site: http://docket.epa.gov/rmepub/. Regional
Material in EDocket (RME), EPA's electronic public docket and comment
system, is EPA's preferred method for receiving comments. Once in the
system, select ``quick search,'' then key in the appropriate RME Docket
identification number. Follow the on-line instructions for submitting
comments.
2. E-mail: Werner.Raymond@epa.gov.
3. Fax: (212) 637-3901.
4. Mail: ``RME ID Number R02-OAR-2005-NY-0003,'' Raymond Werner,
Chief, Air Programs Branch, Environmental Protection Agency, Region 2
Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.
5. Hand Delivery or Courier. Deliver your comments to: Raymond
Werner, Chief, Air Programs Branch, Environmental Protection Agency,
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's
normal hours of operation. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30 excluding Federal
holidays.
A copy of the New York's submittal is available at the following
addresses for inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air Programs
Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866.
New York State Department of Environmental Conservation, Division
of Air Resources, 625 Broadway, Albany, New York 12233.
FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3381 or Wieber.Kirk@epa.gov.
SUPPLEMENTARY INFORMATION:
I. What Was Included in New York's Submittal?
On June 16, 1996, David Sterman, then Deputy Commissioner, New York
State Department of Environmental Conservation (NYSDEC), submitted to
EPA a revision to the State Implementation Plan (SIP) which included
revisions to Title 6 of the New York Codes, Rules and Regulations
(NYCRR), Part 201, ``Permits and Certificates.'' The revisions to Part
201 were submitted by New York in support of its title V Operating
Permit Program under the Clean Air Act (Act), and became State
effective on July 7, 1996. New York requested at that time that
Subparts 201-1, 201-2, 201-3, 201-4, 201-5, 201-7, 201-8 and Appendix B
be incorporated into the federally approved SIP, replacing the existing
federally approved version of Part 201. EPA has deferred taking action
on those revisions to Part 201 due to unresolved concerns raised by the
EPA and NYSDEC regarding specific Subparts. However, on May 27, 2005,
Carl Johnson, Deputy Commissioner, NYSDEC, submitted a SIP revision
requesting EPA's approval of only Subparts 201-7.1, ``General'' and
201-7.2, ``Emission Capping Using Synthetic Minor Permits,'' as were
State effective on July 7, 1996, and the removal of Subpart 201.5(e) of
the existing federally approved version of Part 201.
II. What Provisions to Part 201 Is EPA Acting On?
A. Subparts 201-7.1 and 201-7.2
The Subpart 201-7.1 and 201-7.2 provisions concern ``federally
enforceable emission caps.'' These provisions allow owners or operators
of stationary sources to accept permit conditions which restrict or
``cap'' emissions in order to avoid being subject to one or more
applicable requirements regarding the source or emission unit.
Typically, such a source has actual emissions substantially below its
potential emissions and the cap would prevent increasing emissions. The
owner or operator applying for an emission cap permit modification must
include a proposed monitoring, recordkeeping, and reporting strategy
that will be used to demonstrate that the emissions limitations under
the proposed cap are verifiable, and enforceable, along with the
proposed permit terms and conditions. Capping methods may include: The
reduction in the hours of operation; reformulations relating to the
cap, installation of control equipment; and/or other process changes.
On an annual basis, beginning one year after the granting of an
emissions cap, the responsible official shall provide a certification
to the NYSDEC that the facility has operated all emission units within
the limits imposed by the emission cap. Facilities subject to this
provision must keep records on-site for a minimum of five years.
Emission caps established by New York pursuant to Subpart 201-7.2 are
subject to public review and comment, as required by 201-7.2(b).
Although Subpart 201-7.1 makes reference to Subpart 201-7.3, EPA is
not taking action on Subpart 201-7.3 at this time. However, Subpart
201.7.3 remains State enforceable.
EPA has determined that New York's revised Subparts 201-7.1 and
201-7.2 can be incorporated into the SIP. EPA recognizes federally
enforceable limits or caps on potential to emit to be approvable. In
addition, New York's revised Subparts 201-7.1 and 201-7.2 are designed
to ensure that the limits on potential to emit are legally and
practically enforceable. An August 27, 1996, EPA policy memorandum from
John S. Seitz, Director, Office of Air Quality Planning and Standards,
entitled ``Extension of January 25, 1995 Potential to Emit Transition
Policy'' states that, in light of the court's decision in Clean Air
Implementation Project v. EPA, No. 96-1224 (D.C. Cir., June 28, 1996),
the term ``federally enforceable'' in 40 CFR 70.2 should now be read to
mean ``federally enforceable or legally and practicably enforceable by
a state or local air pollution control agency.'' New York's revised
Subparts 201-7.1 and 201-7.2 are currently State enforceable. The
inclusion of these provisions into the SIP will ensure that New York's
revised Subparts 201-7.1 and 201-7.2 are federally enforceable as well.
EPA is therefore proposing approval.
B. Subpart 201.5(e)
As part of New York's May 27, 2005, submittal, New York requested
that EPA remove existing Subpart 201.5(e) from the federally approved
SIP. Subpart 201.5(e) concerns excess emissions during maintenance,
malfunctions, and start-up.
On September 20, 1999, EPA issued a policy memorandum from Steven
A. Herman, Assistant Administrator for Enforcement and Compliance
Assurance, entitled ``State Implementation Plans: Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown.'' On
November 8, 2001 and December 5, 2001, EPA issued a memorandum of
clarification in
[[Page 42023]]
regard to the September 20, 1999, policy memorandum.
Because excess emissions might aggravate air quality so as to
prevent attainment or interfere with maintenance of the ambient air
quality standards, EPA views all excess emissions as violations of the
applicable emission limitation. Nevertheless, EPA recognizes that
imposition of a penalty for sudden and unavoidable malfunctions caused
by circumstances entirely beyond the control of the owner or operator
may not be appropriate. EPA's 1999 policy memorandum further specifies
what is allowable and when and in what manner SIP's may provide for
defenses of violations caused by periods of excess emissions due to
malfunctions, startup, or shutdown.
New York's Subpart 201.5(e) was initially incorporated into the SIP
prior to the issuance of this policy memorandum. EPA has determined
that New York's Subpart 201.5(e) does not meet the required criteria
for excusing excess emissions from maintenance, malfunctions or
startup, as outlined in the 1999 EPA policy memorandum. Therefore, EPA
agrees with New York's request to remove it from the federally
enforceable SIP.
III. What Is EPA's Conclusion?
EPA has evaluated New York's submittal for consistency with the
Act, EPA regulations, and EPA policy. EPA has determined that the
revisions made to Part 201.7, ``Federally Enforceable Emission Caps,''
specifically the inclusion of Subparts 201-7.1, ``General'' and 201-
7.2, ``Emission Capping Using Synthetic Minor Permits'' meet the SIP
revision requirements of the Act. In addition, EPA has determined that
existing Subpart 201.5(e) should no longer be included in the Federally
approved SIP. Therefore, EPA is proposing to approve revised Subparts
201-7.1 and 201-7.2 into the Federally approved New York SIP and remove
existing Subpart 201.5(e) from the federally approved New York SIP.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). This rule proposes to approve pre-existing
requirements under state law, does not impose any additional
enforceable duty beyond that required by state law, and 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).
This proposed rule also does not have tribal implications because
it will 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, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). This action also does not
have Federalism implications because it does 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, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action
merely proposes to approve a state rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the Act. This proposed rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Act. In this
context, in the absence of a prior existing requirement for the state
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Act. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: July 12, 2005.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. 05-14407 Filed 7-20-05; 8:45 am]
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