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NY-N. NJ-Long Island, NY-NJ-CT Nonattainment Area Clean Data Petition for the 1997 8-Hour Ozone NAAQS, June 16, 2011

And Section 185 Fee Program Termination Determination for the 1990 1-Hour Ozone NAAQS

The following is the content of a letter and associated attachment sent to the Regional Administrator at the USEPA, Judith A. Enck. The letter was signed on 6/16/11 by J. Jared Snyder, Assistant Commissioner, Office of Air Resources, Climate Change and Energy.

On June 11, 2010, the New York State Department of Environmental Conservation (Department) petitioned the United States Environmental Protection Agency (EPA) to make a binding determination that the New York-N. New Jersey-Long Island, NY, NJ, CT metropolitan statistical area (NYMA) had attained the 8-hour ozone national ambient air quality standard (NAAQS) of 0.08 parts per million (ppm). The Department withdraws that request and hereby petitions EPA to make a binding determination that the NYMA has attained both the 1990 1-hour ozone NAAQS of 0.12 ppm and the 1997 8-hour ozone NAAQS of 0.08 ppm.

Air quality monitors in the New York State portion of the NYMA now monitor attainment of the 1990 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS (see enclosure). Air quality monitors in the Connecticut and New Jersey portions of the NYMA also monitor attainment of the 1990 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS (see enclosure).

Furthermore, by attaining both the 1-hour and 8-hour ozone NAAQS, the Department meets the EPA criteria as set forth in EPA's January 5, 2010 "Guidance on Developing Fee Programs required by Clean Air Act Section 185 for the 1-hour Ozone NAAQS," and pursuant to EPA's criteria set forth in this guidance document, requests removal of New York State from the Section 185 fee program.

We look forward to working with you and your staff in an effort to gain timely approval of this petition. If you, or your staff, have any questions, or if additional information is required, please contact Mr. Robert Bielawa, P.E. at (518) 402-8396.

Clean Data Petition Section 185 Fee Program Termination Determination

The New York Metropolitan Area (NYMA) was classified as a "severe" non-attainment area (NAA) for the 1-hour ozone national ambient air quality standard (NAAQS). If a nonattainment area classified as severe or extreme fails to attain the ozone NAAQS by the required date, Section 185 of the Clean Air Act (CAA) requires each major stationary source of volatile organic compounds (VOC) and nitrogen oxides (NO_x) located in such area to pay a fee to the state for each calendar year following the attainment year for emissions above a "baseline amount." The NYMA did not attain the 1-hour standard by the November 15, 2007 attainment date, and therefore became subject to CAA Section 185.

The United States Environmental Protection Agency (EPA) issued guidance on January 5, 2010 for developing fee programs required by CAA Section 185 for the 1-hour Ozone NAAQS.

In this memorandum, EPA states that:

"for an area we (EPA) determine is attaining either the 1-hour or the 1997 8-hour ozone NAAQS, based on permanent and enforceable emissions reductions, the area would no longer be obligated to submit a fee program SIP revision to satisfy the anti-backsliding requirements associated with the transition from the l-hour standard to the 1997 8-hour standard. In such cases an area's existing SIP should be considered an adequate alternative program."

EPA further states that once the 1997 8-hour ozone standard is attained, the purpose of retaining the Section 185 fee program as an anti-backsliding measure would be fulfilled.

Based upon monitoring data for the years 2007-2009, the NYMA has attained the 1997 8-hour ozone NAAQS of 0.08 ppm. A request for a determination of clean data with regard to the 1997 8-hour ozone NAAQS was previously submitted to EPA Region 2 for approval and provides the quality assured 2007-2009 design values (DVs). Therefore, the NYMA non-attainment area is eligible to request a termination of the CAA Section 185 fee collection.

As such, the Department is submitting this request for a determination of termination of the requirement to implement Section 185 of the CAA of 1990.

1-hour Ozone NAAQS

EPA's approval of New York State's 15 and 9 Percent Rate of Progress Plans and Phase I Ozone Implementation Plan for the 1-hour ozone NAAQS was effective on June 11, 2001 for SIP revisions dated November 15, 1993, September 4, 1997 and February 2, 1999. These SIP revisions consisted of: the 1990 base year ozone emission inventory (for all ozone nonattainment areas in New York), the 1996 and 1999 ozone projection emission inventories, demonstration that emissions from growth in vehicle miles traveled would not increase motor vehicle emissions and, therefore, offsetting measures are not necessary, modeling efforts completed to date; transportation conformity budgets, photochemical assessment monitoring stations network, and enforceable commitments.

EPA's approval of New York State's 1-hour ozone attainment demonstration was effective on March 6, 2002 for SIP revisions dated November 27, 1998, April 15, 1999 and April 18, 2000. The attainment demonstration consisted of: photochemical grid modeling results for three episodes representing different weather conditions, additional evidence to demonstrate attainment for the nonattainment area, VOC and NO_x emission inventories, and identification of control measures needed to attain the 1-hour NAAQS.

Air quality monitors in the New York State portion of the NYMA now monitor attainment of the 1-hour ozone NAAQS. Air quality monitors in the Connecticut and New Jersey portions of the NYMA also monitor attainment of the 1-hour ozone standard. It is assumed the States of Connecticut and New Jersey have submitted or will be submitting their own certified monitoring data that demonstrates compliance with the 1-hour ozone NAAQS. To attain this standard, the fourth-highest daily maximum 1-hour average ozone concentration measured at each monitor (DV) within an area over three years must not exceed 0.12 ppm. Based on the rounding convention required by EPA (40 CFR 50 App. I), the DV must be less than 0.125 ppm in order to demonstrate attainment of the 1-hour ozone NAAQS.

One-hour ozone exceedances were analyzed for the nine New York State ozone monitors within the New York Metropolitan NAA which operated continuously from 2008 to 2010. The number of exceedances has steadily declined, and the DVs are well below the NAAQS.

The EPA report used to demonstrate New York State's compliance with the 1-hour ozone NAAQS is included as part of this submittal. The following table summarizes the quality assured 2010 DVs for the 1-hour ozone NAAQS (0.12 ppm; monitored < or = 0.125 ppm due to rounding) that are certified by the Department as accurate:

The following data supplied to the Department by the Connecticut Department of Environmental Protection contains 2010 DVs (in parts per million):

* Design Value for the entire Nonattainment Area

The following data supplied to the Department by the New Jersey Department of Environmental Protection contains 2010 1-hour ozone DVs (in parts per million):

8-hour Ozone NAAQS

On April 30, 2004, EPA promulgated designations for the 1997 ozone NAAQS (69 FR 23858).

Air quality monitors in the New York State portion of the NYMA now monitor attainment of the 8-hour ozone NAAQS. Air quality monitors in the Connecticut and New Jersey portions of the NYMA also monitor attainment of the 1997 8-hour ozone standard. To attain this standard, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentration measured at each monitor (DV) within an area over each year must not exceed 0.08 ppm. Based on the rounding convention required by EPA (40 CFR 50 App. I), the DV must be less than 0.085 ppm in order to demonstrate attainment of the 1997 ozone NAAQS.

The following table contains complete, quality assured 2007-2009 8-hour ozone design values that are certified by the Department as accurate:

The following data supplied to the Department by the Connecticut Department of Environmental Protection contains complete, quality assured 2007-2009 8-hour ozone DVs (in parts per million) that are certified as accurate:

* Design Value for the entire Nonattainment Area
+ 0.08 when rounded to two significant figures pursuant to EPA guidance

The following data supplied to the Department by the New Jersey Department of Environmental Protection contains complete, quality assured 2007-2009 8-hour ozone DVs (in parts per million) that are certified as accurate:

On May 5, 1995, John S. Seitz, Director of the Office of Air Quality Planning and Standards at the United States Environmental Protection Agency (EPA) issued a memorandum entitled, "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard." This memorandum set forth EPA's interpretation of certain requirements of subpart 2 of part D of title I of the Clean Air Act as they related to ozone nonattainment areas that are meeting the ozone National Ambient Air Quality Standard (NAAQS).

EPA concluded that it is reasonable to interpret provisions regarding reasonable further progress (RFP) and attainment demonstrations, along with related requirements, so as not to require State Implementation Plan (SIP) submissions if an ozone nonattainment area subject to those requirements is in fact attaining the ozone standard. EPA previously interpreted the general provisions of subpart 1 so as not to require the submission of SIP revisions concerning RFP, attainment demonstrations, or contingency measures.

The Department hereby petitions EPA to make a binding determination that the subject area has attained the 1997 ozone NAAQS based on 2007-2009 monitoring data.

Furthermore, the data in the following table demonstrates that the New York State portion of the NYMA continues to attain the standard through 2010, but is not to be used for the basis for the clean data determination. It contains complete, quality assured 2008-2010 fourth highest daily maximum 8-hour ozone monitoring data and 2010 DVs that are certified by the Department as accurate:

Demonstration of Permanent and Enforceable Control Strategies

The NYMA has experienced improved air quality over the past several years as is evidenced by decreases in both l-hour and 8-hour ozone emission inventories. These reduced emission inventories are due to permanent and enforceable reductions in VOC and NO_x emissions through control strategies implemented in the areas that were identified in New York's February 8, 2008 Ozone SIP and the September 16, 2008 Ozone Reasonably Available Control Measure (RACT) SIP submittals. Permanent and enforceable state and national control strategies implemented in the New York metropolitan area include items in the following lists and table below:

Recently Adopted Control Measures

6 NYCRR Part 235: Consumer Products
6 NYCRR Part 239: Portable Fuel Containers
6 NYCRR Part 205: AIM Coatings
6 NYCRR Part 228: Mobile Equipment Repair
6 NYCRR Part 226: Solvent Metal Cleaning
6 NYCRR Part 220: Portland Cement Plants and Glass Manufacturing
6 NYCRR Subpart 227-2: ICI Boiler RACT/HEDD
6 NYCRR Part 234: Graphic Arts.
6 NYCRR Part 212.12: Asphalt Paving Production
6 NYCRR Part 228: Adhesives and Sealants
6 NYCRR Part 241: Asphalt Paving State Control Strategies:

Federal Measures

In addition to the state measures listed in this document, numerous federal measures have been implemented that have also resulted in NO_x and VOC reductions in the New York metropolitan area. Examples of these federal measures include: Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards; Heavy-Duty Diesel Engine Rule; and Non-Road Diesel Engine Rule.

Previous Commitments

This section summarizes the ongoing mobile source and stationary source control measures that have been enacted in the past to minimize emissions of NO_x and VOCs. These past commitments continue indefinitely, unless replaced by an equivalent or stricter emission reduction strategy.

New mobile source and stationary source control measures, identified previously in this submittal, will work in conjunction with these prior commitments to help reduce ozone forming precursors of NO_x and VOC emission reductions.

Gasoline Measures

Part 225-3: Fuel Consumption and Use - Gasoline

New York State adopted Subpart 225-3 of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) to limit the volatility, or Reid Vapor Pressure (RVP), of motor fuel statewide as a strategy for controlling VOC emissions from motor vehicles. Specifically, this regulation established a maximum RVP of 9.0 pounds per square inch (psi) for all gasoline sold or supplied to retailers and wholesale purchaser-consumers anywhere in New York State from May 1 through September 15 of each year.

Part 230: Gasoline Dispensing Sites and Transport Vehicles

This rule contains requirements for Stage I and Stage II gasoline dispensing site regulations. Stage I systems are required state-wide, while Stage II systems are mandated only in the New York Metropolitan Area (NYMA) and lower Orange County. Part 230 affects gasoline dispensing sites whose annual throughput exceeds 120,000 gallons. (This minimum throughput level is waived for NYMA.)

A Stage I vapor collection system captures gasoline vapors which are displaced from underground gasoline storage tanks when those tanks are filled. These vapors are forced into a vapor-tight gasoline transport vehicle or vapor control system through direct displacement by the gasoline being loaded. A Stage II vapor collection system captures at least 90 percent, by weight, of the gasoline vapors that are displaced or drawn from a vehicle fuel tank during refueling; these vapors are then captured and either retained in the storage tanks or destroyed in an emission control device.

Federal Reformulated Gasoline - Phase I and II

Section 211(k) of the CAA deemed that reformulated gasoline must be sold in certain ozone non-attainment areas. Federal reformulated gasoline allows for a maximum of 1% benzene by volume. Phase I of the rule took effect January 1, 1995 with preliminary VOC and air toxics standards. These reformulated gasoline standards were replaced with Phase II standards, effective January 1, 2000, which called for broader emissions controls, requiring 25%-29% VOC emission reductions and 20%-22% air toxics reductions. Retail distribution of reformulated gasoline is required in NYMA and Orange County. Dutchess County and a portion of Essex County have voluntarily opted to use reformulated gasoline.

NY Motor Vehicle Hardware Measures

Part 217: Motor Vehicle Emissions

To help limit ozone precursor emissions from motor vehicles, New York State has implemented 6 NYCRR Part 217, which contains emissions standards for in-use vehicles and applies to all non-electric and non-diesel automobiles in the state. This rule also requires that all affected vehicles have an on-board diagnostic system which functions correctly and meets certain design standards.

Part 218: Emission Standards for Motor Vehicles and Motor Vehicle Engines

In this rule, New York State requires that new light-duty vehicles sold in New York meet California's emission standards.

Part 231: New Source Review in Non-Attainment Areas and Ozone Transport Region

New Source Review (NSR) in non-attainment areas has been regulated by 6 NYCRR Part 231 of the New York State air pollution control regulations since 1979. Part 231 was written to conform to federal guidelines and requirements on new sources and modifications at major facilities in non-attainment areas which would cause emission increases exceeding de minimus levels set forth in the regulation. The base requirements for applicable sources were that Lowest Achievable Emission Rate (LAER) be applied and that emission offsets be provided.

VOC RACT

EPA has approved regulations for prior SIP commitments for reducing emissions from non-mobile sources. Descriptions of these regulations are summarized in the following sections.

Part 212: General Process Emission Sources

This rule, which applies to both VOC and NO_x emissions, requires the application of Reasonably Available Control Technology (RACT) for each emission point which emits NO_x for major NO_x facilities or VOCs for major VOC facilities. Its requirements are mostly generic, with specific requirements only for coating operations not subject to Part 228.

Part 226: Solvent Metal Cleaning Processes

Part 226 puts forth guidelines for the cleaning of metal surfaces by VOC-containing substances. Listed in this regulation are specifications limiting the vapor pressure solvents as well as those for control equipment and proper operating practices for a variety of degreasing operations, as well as general requirements for storage and recordkeeping. The Department may accept a lesser degree of control upon submission of satisfactory evidence that the person engaging in solvent metal cleaning is applying RACT and has a plan to develop the technologies necessary to comply with the aforementioned sections.

Part 228: Surface Coating Processes (Including Autobody Shops)

Part 228 limits the VOC content for each gallon of coating and sets minimum efficiency levels for VOC incinerators used as control equipment for VOC emissions from coating processes. It also provides for the use of source-specific analyses of control requirements where the requirements of the rules cannot be met. Additionally, Part 228 contains requirements for paints and coatings used in autobody refinishing and repairing, including spray equipment and housekeeping.

Part 229: Petroleum and Volatile Organic Liquid Storage and Transfer

This rule limits VOC emissions from applicable gasoline bulk plants, gasoline loading terminals, marine loading vessels, petroleum liquid storage tanks or organic liquid storage tanks. There are lower applicability thresholds for each process for NYMA than those for the Lower Orange County metropolitan area, upstate ozone non-attainment areas, and areas not included above.

Part 233: Pharmaceutical and Cosmetic Manufacturing Processes

This rule limits VOC emissions from synthesized pharmaceutical or cosmetic manufacturing processes at a major source facility located in NYMA. Compliance requires the installation of control devices, along with monitoring, recordkeeping, and leak repair.

Part 234: Graphic Arts

This rule sets control requirements and limits VOC emissions from packaging rotogravure, publication rotogravure, flexographic, offset lithographic or screen printing processes at a major source facility located in NYMA.

MACT

Under Section 112 of the 1990 CAA Amendments, hazardous air pollutants (HAPs) are required to be controlled by technology determined to be the Maximum Achievable Control Technology (MACT). Since many organic HAPs are also VOCs, the use of MACT results in the reduction of VOC and NO_x emissions. New York has been adopting MACT control requirements as they have been developed by EPA and has therefore been realizing the reductions resulting from the MACT program. These federal regulations are incorporated by reference in 6 NYCRR 200.10 (Tables 2, 3 and 4).

Part 235: Consumer Products

The Consumer Products rule regulates the VOC content of consumer and commercial products that are sold to retail customers for personal, household, or automotive use, along with the products marketed by wholesale distributors for use in commercial or institutional settings such as beauty shops, schools and hospitals. The rule also includes labeling, reporting and compliance requirements that apply to manufacturers of these products.

Part 205: Architectural and Industrial Maintenance (AIM) Coatings

This regulation limits the content of VOCs in AIM coatings by setting minimum VOC limits for AIM coatings. Part 205 also contains labeling and reporting requirements, compliance provisions and test methods.

Part 208: Landfill Gas Collection and Control Systems for Certain Municipal Solid Waste Landfills

This rule applies to the operation of municipal solid waste (MSW) landfills exceeding stated capacities. For landfills whose non-methane hydrocarbon emissions exceed 50 megagrams per year, the operator must submit a collection and control system design and permit application, along with operating standards for the control systems. The rule additionally contains requirements for monitoring, testing, recordkeeping and reporting.

Part 227: Stationary Combustion Installations

Subpart 227-2: Reasonably Available Control Technology (RACT) for Oxides of Nitrogen (NO_x)

Subpart 227-2 sets NO_x control limits for major source stationary combustion installations. NO_x RACT requirements applicable to particular applicable combustion sources fall into one of two categories: presumptive RACT limits (which are often set as emission limits but also take other forms) or case-by-case RACT determinations. Presumptive RACT limits are category-wide requirements. However, for some sources, presumptive RACT limits may not be attainable. Case-by-case RACT determinations consider the technological and economic circumstances of the source in these circumstances. Each case-by-case determination which establishes RACT requirements in a source's permit must be submitted to the administrator as a separate SIP revision.

Other NO_x RACT Provisions

Additional RACT provisions include Part 220 which limits particulate and NO_x emissions from portland cement plants, and Part 212, which applies to general process sources. For the purpose of RACT analyses related to the 8-hour ozone standard, RACT consists of technically feasible NO_x control strategies to minimize NO_x formation.

Part 204: NO_x Budget Trading Program

Part 204 sets requirements for how New York meets the emissions budget for NO_x established in EPA's final rule entitled "Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone," otherwise known as the "NO_x SIP Call." This rulemaking set a NO_x emissions budget for New York for the five month summer season. New York is meeting this budget through control programs already in place and by limiting the NO_x emissions of certain major stationary sources through the NO_x budget trading program established under 6 NYCRR 204. Part 204 applies to the following source categories: Electric Generating Units (EGUs) with nameplate capacities equal to or greater than 15 megawatts; non-EGUs with maximum design heat inputs equal to or greater than 250 million British thermal units (MMBtu) per hour; and portland cement kilns with maximum design heat inputs equal to or greater than 250 MMBtu per hour. The Department allocates the budget to sources within the above categories. Sources may hold or transfer allowances, but, at the end of each year's reconciliation period, must have enough allowances in its compliance accounts to cover emissions during the control period.

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