Approval and Promulgation of Implementation Plans; New York; Infrastructure SIP for the 2010 Nitrogen Dioxide Primary Standard, 25066-25074 [2014-09982]
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Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules
Dated: April 22, 2014.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2014–10115 Filed 5–1–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2013–0527, FRL–9910–16–
Region 2]
Approval and Promulgation of
Implementation Plans; New York;
Infrastructure SIP for the 2010 Nitrogen
Dioxide Primary Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
certain elements of New York’s State
Implementation Plan (SIP) revision
submitted to demonstrate that the State
meets the requirements of section
110(a)(1) and (2) of the Clean Air Act
(CAA) for the 2010 National Ambient
Air Quality Standard (NAAQS) for
nitrogen dioxide (NO2). Section 110(a)
of the CAA requires that each state
adopt and submit a SIP for the
implementation, maintenance and
enforcement of each NAAQS
promulgated by the EPA and is
commonly referred to as an
infrastructure SIP.
DATES: Comments must be received on
or before June 2, 2014.
ADDRESSES: Submit your comments,
identified by Docket ID number EPA–
R02–OAR–2013–0527, by one of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• Email: Ruvo.Richard@epa.gov.
• Fax: 212–637–3901.
• Mail: Richard Ruvo, Chief, Air
Programs Branch, Environmental
Protection Agency, Region 2 Office, 290
Broadway, 25th Floor, New York, New
York 10007–1866.
• Hand Delivery: Richard Ruvo,
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.
Instructions: Direct your comments to
Docket ID No. EPA–R02–OAR–2013–
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SUMMARY:
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0527. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through www.regulations.gov
or email. The www.regulations.gov Web
site is an ‘‘anonymous access’’ system,
which means EPA will not know your
identity or contact information unless
you provide it in the body of your
comment. If you send an email
comment directly to EPA without going
through www.regulations.gov your email
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 2 Office, Air Programs Branch,
290 Broadway, 25th Floor, New York,
New York 10007–1866. EPA requests, if
at all possible, that you contact the
individual listed in the FOR FURTHER
INFORMATION CONTACT section to view
the hard copy of the docket. You may
view the hard copy of the docket
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Anthony (Ted) Gardella, Air Programs
Branch, Environmental Protection
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Agency, 290 Broadway, 25th Floor, New
York, New York 10007–1866, (212) 637–
4249, or by email at gardella.anthony@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. What action is EPA proposing?
II. What is the background information?
III. What elements are required under section
110(a)(1) and (2)?
IV. What is EPA’s approach to the review of
infrastructure SIP submissions?
V. What did New York submit?
VI. How has the State addressed the elements
of the section 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
VII. What action is EPA taking?
VIII. Statutory and Executive Order Reviews
I. What action is EPA proposing?
EPA is proposing to approve certain
elements of the State of New York
Infrastructure SIP as meeting the section
110(a) infrastructure requirements of the
Clean Air Act (CAA) for the 2010 NO2
National Ambient Air Quality Standard
(NAAQS or standard). As explained
below, the State has the necessary
infrastructure, resources, and general
authority to implement the 2010 NO2
standard.
II. What is the background
information?
On February 9, 2010, EPA
promulgated a new, 1-hour primary
NAAQS for NO2 (2010 NO2 NAAQS)
while retaining the annual primary
NAAQS for NO2 (75 FR 6474). The 2010
NO2 NAAQS is based on 1-hour three
year average concentrations.1 The 2010
NO2 NAAQS is 100 parts per billion
(ppb) and the new standard
supplements the existing primary
annual standard of 53 ppb. The
secondary NO2 NAAQS remains
unchanged and is the same as the
primary annual average NO2 NAAQS,
i.e., 53 ppb.2
Section 110(a)(1) provides the
procedural and timing requirements for
State Implementation Plans (SIPs).
Section 110(a)(2) lists specific elements
that states must meet for SIP
requirements related to a newly
established or revised NAAQS. Sections
110(a)(1) and (2) of the CAA require, in
part, that states submit to EPA plans to
implement, maintain and enforce each
of the NAAQS promulgated by EPA. By
statute, SIPs meeting the requirements
of section 110(a)(1) and (2) are to be
submitted by states within three years
1 The 2010 NO NAAQS is expressed as the three
2
year average of the 98th percentile of the annual
distribution of daily maximum 1-hour average
concentrations.
2 The official level of the annual NO NAAQS is
2
0.053 parts per million (ppm), equal to 53 ppb
which is shown here for the purpose of clearer
comparison to the 1-hour NO2 NAAQS.
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after promulgation of a new or revised
standard. These SIPs are commonly
called infrastructure SIPs. Based on the
February 9, 2010 promulgation date,
infrastructure SIPs for the 2010 NO2
NAAQS were due on February 9, 2013.
III. What elements are required under
section 110(a)(1) and (2)?
The infrastructure requirements are
listed in EPA’s October 2, 2007,
memorandum entitled ‘‘Guidance on
SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-Hour
Ozone and PM2.5 National Ambient Air
Quality Standards’’ and September 25,
2009, memorandum entitled ‘‘Guidance
on SIP Elements Required Under
Section 110(a)(1) and (2) for the 2006
24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards. In
addition, in a memorandum dated
September 13, 2013, EPA released new
guidance entitled ‘‘Guidance on
Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and 110(a)(2),’’ 3 This
new guidance (2013 Guidance)
addresses the 2008 ozone, 2010 NO2,
2010 SO2, and 2012 PM2.5 NAAQS, as
well as infrastructure SIPs for new or
revised NAAQS promulgated in the
future. The 14 elements required to be
addressed are as follows: (1) Emission
limits and other control measures; (2)
ambient air quality monitoring/data
system; (3) program for enforcement of
control measures; (4) interstate
transport; (5) adequate resources; (6)
stationary source monitoring system; (7)
emergency power; (8) future SIP
revisions; (9) consultation with
government officials; (10) public
notification; (11) prevention of
significant deterioration (PSD) and
visibility protection; (12) air quality
modeling/data; (13) permitting fees, and
(14) consultation/participation by
affected local entities.
Two elements identified in section
110(a)(2) are not governed by the 3 year
submission deadline of section 110(a)(1)
because SIPs incorporating necessary
local nonattainment area controls are
not due within 3 years after
promulgation of a new or revised
NAAQS, but rather due at the time that
the nonattainment area plan
requirements are due pursuant to
section 172. See 77 FR 46354 (August 3,
2012); 77 FR 60308 (October 3, 2012,
footnote 1). These requirements are: (1)
submissions required by section
110(a)(2)(C) to the extent that subsection
3 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2)’’ can be
found at: https://www.epa.gov/airquality/urbanair/
sipstatus/infrastructure.html.
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refers to a permit program as required in
part D Title I of the CAA, and (2)
submissions required by section
110(a)(2)(I) which pertain to the
nonattainment planning requirements of
part D, Title I of the CAA. As a result,
this action does not address the
nonattainment planning requirements
related to section 110(a)(2)(C) or
110(a)(2)(I).
IV. What is EPA’s approach to the
review of infrastructure SIP
submissions?
EPA is acting upon the SIP
submission from New York State that
addresses the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2010 NO2 NAAQS.
The requirement for states to make a SIP
submission of this type arises out of
CAA section 110(a)(1). Pursuant to
section 110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review permit program
submissions to address the permit
requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions, and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
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contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.4 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
title I of the Act, which specifically
address nonattainment SIP
requirements.5 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years, or in some cases three years,
for such designations to be
promulgated.6 This ambiguity illustrates
4 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of title
I of the CAA; and section 110(a)(2)(G) provides that
states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
5 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
6 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
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that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
sections 110(a)(1) and 110(a)(2) with
respect to infrastructure SIPs pertains to
whether states must meet all of the
infrastructure SIP requirements in a
single SIP submission, and whether EPA
must act upon such SIP submission in
a single action. Although section
110(a)(1) directs states to submit ‘‘a
plan’’ to meet these requirements, EPA
interprets the CAA to allow states to
make multiple SIP submissions
separately addressing infrastructure SIP
elements for the same NAAQS. If states
elect to make such multiple SIP
submissions to meet the infrastructure
SIP requirements, EPA can elect to act
on such submissions either individually
or in a larger combined action.7
Similarly, EPA interprets the CAA to
allow it to take action on the individual
parts of one larger, comprehensive
infrastructure SIP submission for a
given NAAQS without concurrent
action on the entire submission. For
example, EPA has sometimes elected to
act at different times on various
elements and sub-elements of the same
infrastructure SIP submission.8
Ambiguities within sections 110(a)(1)
and 110(a)(2) may also arise with
respect to infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
7 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR
4337) (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
8 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
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of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, for example
because the content and scope of a
state’s infrastructure SIP submission to
meet this element might be very
different for an entirely new NAAQS
than for a minor revision to an existing
NAAQS.9
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
that attainment plan SIP submissions
required by part D have to meet the
‘‘applicable requirements’’ of section
110(a)(2). Thus, for example, attainment
plan SIP submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the PSD
program required in part C of title I of
the CAA, because PSD does not apply
to a pollutant for which an area is
designated nonattainment and thus
subject to part D planning requirements.
As this example illustrates, each type of
SIP submission may implicate some
elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
9 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.10 EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).11 EPA developed
this document to provide states with upto-date guidance for infrastructure SIPs
for any new or revised NAAQS. Within
this guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions.12 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2).
Significantly, EPA interprets sections
110(a)(1) and 110(a)(2) such that
infrastructure SIP submissions need to
address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
10 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
11 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
12 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d7
(D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
SIP appropriately addresses the
requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance
explains EPA’s interpretation that there
may be a variety of ways by which states
can appropriately address these
substantive statutory requirements,
depending on the structure of an
individual state’s permitting or
enforcement program (e.g., whether
permits and enforcement orders are
approved by a multi-member board or
by a head of an executive agency).
However they are addressed by the
state, the substantive requirements of
section 128 are necessarily included in
EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and NSR
pollutants, including GHGs. By contrast,
structural PSD program requirements do
not include provisions that are not
required under EPA’s regulations at 40
CFR 51.166 but are merely available as
an option for the state, such as the
option to provide grandfathering of
complete permit applications with
respect to the 2012 PM2.5 NAAQS.
Accordingly, the latter optional
provisions are types of provisions EPA
considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
new source review program and
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whether the program addresses the
pollutants relevant to that NAAQS. In
the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); (ii) existing provisions related
to ‘‘director’s variance’’ or ‘‘director’s
discretion’’ that may be contrary to the
CAA because they purport to allow
revisions to SIP-approved emissions
limits while limiting public process or
not requiring further approval by EPA;
and (iii) existing provisions for PSD
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Thus, EPA believes it may
approve an infrastructure SIP
submission without scrutinizing the
totality of the existing SIP for such
potentially deficient provisions and may
approve the submission even if it is
aware of such existing provisions.13 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
13 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption for excess emissions during
SSM events, then EPA would need to evaluate that
provision for compliance against the rubric of
applicable CAA requirements in the context of the
action on the infrastructure SIP.
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110(a)(2) as requiring review of each
and every provision of a state’s existing
SIP against all requirements in the CAA
and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II). Finally, EPA believes
that its approach with respect to
infrastructure SIP requirements is based
on a reasonable reading of sections
110(a)(1) and 110(a)(2) because the CAA
provides other avenues and mechanisms
to address specific substantive
deficiencies in existing SIPs. These
other statutory tools allow EPA to take
appropriately tailored action, depending
upon the nature and severity of the
alleged SIP deficiency. Section 110(k)(5)
authorizes EPA to issue a ‘‘SIP call’’
whenever the Agency determines that a
state’s SIP is substantially inadequate to
attain or maintain the NAAQS, to
mitigate interstate transport, or to
otherwise comply with the CAA.14
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.15
14 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
15 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
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Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.16
V. What did New York submit?
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New York’s section 110 infrastructure
submittal was submitted by the New
York State Department of
Environmental Conservation (NYSDEC)
on May 8, 2013, as supplemented on
May 23, 2013, and addressed the 2010
NO2 NAAQS. New York’s May 2013
section 110 submittals demonstrate how
the State, where applicable, has a plan
in place that meets the requirements of
section 110 for the 2010 NO2 NAAQS.
This plan references the current New
York Air Quality SIP, the New York
Codes of Rules and Regulations
(NYCRR), the New York Environmental
Conservation Law (ECL) and the New
York Public Officer’s Law (POL). The
NYCRR, ECL and POL referenced in the
submittal are publicly available. New
York’s SIP and air pollution control
regulations that have been previously
approved by EPA and incorporated into
the New York SIP can be found at 40
CFR 52.1670 and are posted on the
Internet at: https://www.epa.gov/
region02/air/sip/ny_reg.htm.
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under CAA section 110(k)(6) to
remove numerous other SIP provisions that the
Agency determined it had approved in error. See,
e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa,
Arizona, California, Hawaii, and Nevada SIPs); 69
FR 67062 (November 16, 2004) (corrections to
California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
16 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (Jan. 26, 2011)
(final disapproval of such provisions).
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VI. How has the State addressed the
elements of the section 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
EPA compared New York’s
Infrastructure SIP submittals for the
2010 NO2 NAAQS to New York’s
Infrastructure SIP submittals for the
1997 8-hour ozone and the 1997 and
2006 fine particulate matter (PM2.5)
NAAQS. On June 20, 2013, EPA took
final action [see 78 FR 37122] approving
certain elements and sub-elements of
New York’s 1997 8-hour ozone and the
1997 and 2006 PM2.5 Infrastructure SIPs.
Based upon EPA’s comparison, EPA has
determined that the information
provided in New York’s 2010 NO2
Infrastructure SIP is nearly identical to
the information provided in New York’s
Infrastructure SIP submittals for the
1997 8-hour ozone and 1997 and 2006
PM2.5 NAAQS. Infrastructure SIPs for
different criteria pollutants can have
common aspects which are identical for
each NAAQS (e.g., authority to
promulgate emission limitations,
enforcement, air quality modeling
capabilities, adequate personnel,
resources and legal authority). The
rationale for approving certain elements
of New York’s Infrastructure SIP for NO2
is the same as the rationale for
approving those elements of New York’s
1997 8-hour ozone and 1997 and 2006
PM2.5 Infrastructure SIPs. Since the
rationale for approving certain elements
of New York’s NO2 Infrastructure SIP is
the same as the rationale for approving
certain elements of New York’s 1997 8hour ozone and 1997 and 2006 PM2.5
Infrastructure SIPs, EPA is not repeating
this evaluation in today’s proposal.
Instead, the reader is referred to EPA’s
evaluation of the three SIP submittals
(the 1997 8-hour ozone and 1997 and
2006 PM2.5 Infrastructure SIPs) detailed
in the following three documents: (1)
‘‘Technical Support Document for EPA’s
Proposed Rulemaking for the New
York’s State Implementation Plan
Revision: State Implementation Plan
Revision For Meeting the Infrastructure
Requirements In the Clean Air Act
Dated December 13, 2007, October 2,
2008 and March 15, 2010’’ (TSD); (2)
EPA’s proposed approval dated April
30, 2013 (78 FR 25236); and, (3) EPA’s
June 20, 2013 final rule approving
certain elements of New York’s
Infrastructure SIPs for the 1997 8-hour
ozone and the 1997 and 2006 PM2.5
NAAQS (78 FR 37122). These three
documents are available in the
electronic docket for today’s proposed
action at www.regulations.gov. We are,
of course, accepting comments on that
rationale as it applies to our proposed
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approval of New York’s Infrastructure
SIP for the NO2 NAAQS.
EPA is proposing approval of the
following elements and sub-elements of
New York’s Infrastructure SIP for NO2:
110(a)(2)(A) [Emission limits and other
control measures]; 110(a)(2)(B)
[Ambient air quality monitoring/data
system]; 110(a)(2)(C) [Program for
enforcement of control measures];
110(a)(2)(D) [Interstate transport];
110(a)(2)(E) [Adequate resources];
110(a)(2)(F) [Stationary source
monitoring]; 110(a)(2)(G) [Emergency
power]; 110(a)(2)(H) [Future SIP
Revisions]; 110(a)(2)(J) [Consultation
with government official, public
notification, PSD, and visibility
protection]; 110(a)(2)(K) [Air quality and
modeling/data]; 110(a)(2)(L) [Permitting
fees]; 110(a)(2)(M) [Consultation/
participation by affected local entities].
As stated above, there are certain
aspects of the elements of New York’s
Infrastructure SIP for the 2010 NO2
NAAQS that are common to New York’s
1997 8-hour ozone and 1997 and 2006
PM2.5 Infrastructure SIPs that EPA
approved on June 20, 2013 and therefore
EPA is not repeating the rationale for
approving the following elements of
New York’s Infrastructure SIP for the
2010 NO2 NAAQS in today’s proposal:
Elements A, D(i)(II), D(ii), E, F, H, I, J,
K, L, and M.
As discussed in the following
sections, for those elements of New
York’s NO2 Infrastructure SIP that differ
from New York’s 1997 8-hour ozone and
1997 and 2006 PM2.5 Infrastructure SIPs,
EPA has reviewed and evaluated the
aspects of those elements, namely
elements B, C, D(i)(I) and G.
Element B: Ambient air quality
monitoring/data system: Section
110(a)(2)(B) requires SIPs to include
provisions to provide for establishment
and operation of ambient air quality
monitors, to monitor, compile and
analyze ambient air quality data, and to
make these data available to EPA upon
request. EPA requires that states
establish a new ambient air quality
monitoring and reporting requirements
for NO2 as follows: (1) In urban areas
near major roads and other locations
where maximum concentration is
expected; (2) community wide
monitoring in large urban areas; and (3)
in locations where EPA identifies
monitoring will help protect
communities that are susceptible and
vulnerable to NO2-related health effects.
New York addressed EPA’s new
monitoring requirements when it
submitted its Annual Monitoring
Network Review Plan (Plan) of 2013 on
July 18, 2013. EPA approved this Plan
on September 5, 2013. EPA is therefore
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proposing to determine that New York
has met the requirements of section
110(a)(2)(B) of the CAA with respect to
the 2010 NO2 NAAQS. A copy of New
York’s 2013 Monitoring Plan and EPA’s
September 5, 2013 approval letter are in
the docket for today’s proposal at
www.regulations.gov.
Element C: Program for enforcement
of control measures: Section
110(a)(2)(C) requires states to have a
plan that includes a program providing
for enforcement of all SIP measures and
the regulation of the modification and
construction of any stationary source,
including a program to meet Prevention
of Significant Deterioration (PSD) of Air
Quality and minor source new source
review.
New York’s Infrastructure SIP for NO2
references the State’s PSD and
Nonattainment New Source Review
(NNSR) permitting requirements
contained in 6 NYCRR Part 231, Part
200 and Part 201. EPA approved these
rules into the SIP on November 17, 2010
(75 FR 70140). New York’s minor source
new source review program is regulated
under Part 201.
EPA has reviewed and evaluated New
York’s Infrastructure SIP for the 2010
NO2 NAAQS for meeting the
requirements of element C. While the
Infrastructure SIP does not specifically
reference NO2, it refers to the State’s
PSD permitting requirements in Part 231
which regulates oxides of nitrogen
(NOX) which includes NO2. In addition,
element C of New York’s Infrastructure
SIP for the 2010 NO2 NAAQS refers to
8-hour ozone. NOX is a precursor of
ozone and PM2.5, and NO2 is one of the
components of NOX. Moreover, the PSD
portion of Part 231 regulates the
construction of proposed new or
modified facilities that are required to
demonstrate in their permit application
that allowable emission increases from
the facilities, in conjunction with all
other applicable emission increases or
reductions (including secondary
emissions), would not, among other
things, cause or significantly contribute
to air pollution in violation of any
national ambient air quality standard 17
in any air quality control region. Since
NO2 is a NAAQS, the PSD provisions of
Part 231 are applicable to NO2. For these
reasons, EPA concludes that by
referencing Part 231, which is part of
New York’s approved SIP, New York’s
Infrastructure SIP addresses the PSD
17 EPA has set NAAQS for six principal
pollutants, as follows: Carbon monoxide (CO), lead
(Pb), nitrogen dioxide (NO2), ozone (O3), particle
pollution (PM), and sulfur dioxide (SO2).
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requirements of section 110(a)(2)(C) for
NO2.
Therefore, EPA proposes to find that
the State has adequate authority and
regulations to ensure that SIP-approved
control measures are enforced. EPA also
finds that based on the approval of New
York’s PSD program, New York has the
authority to regulate the construction of
new or modified stationary sources to
meet the PSD program requirements.
EPA is proposing to determine that New
York has met the requirements of
section 110(a)(2)(C) and (J) of the CAA
with respect to the 2010 NO2 NAAQS.
It should be noted that the PSD
provisions of Part 231 address the
requirements of section 110(a)(2)(J) as
well as section 110(a)(2)(C).
Element D: Interstate transport:
Section 110(a)(2)(D) of the Clean Air Act
is divided into two subsections,
110(a)(2)(D)(i) and 110(a)(2)(D)(ii). The
first of these, 110(a)(2)(D)(i), in turn,
contains four ‘‘prongs’’ the first two of
which appear in 110(a)(2)(D)(i)(I) and
the second two of which appear in
110(a)(2)(D)(i)(II). The two prongs in
110(a)(2)(D)(i)(I) prohibit any source or
other type of emissions activity within
the State from emitting any air
pollutants in amounts which will
contribute significantly to
nonattainment in any other state with
respect to any primary or secondary
NAAQS (prong 1), or interfere with
maintenance by any other state with
respect to any primary or secondary
NAAQS (prong 2). The two prongs in
110(a)(2)(D)(i)(II) prohibit any source or
other type of emissions activity within
the State from emitting any air
pollutants in amounts which will
interfere with measures required to be
included in the applicable
implementation plan for any other state
under part C to prevent significant
deterioration of air quality (prong 3) or
to protect visibility (prong 4).
Subsection 110(a)(2)(D)(ii) addresses
interstate and international pollution
abatement, and requires SIPs to include
provisions insuring compliance with
sections 115 and 126 of the CAA,
relating to interstate and international
pollution abatement.
In this action, EPA is proposing to
approve the 110(a)(2)(D) portion of the
New York SIP submission and
determine that the existing New York
SIP contains provisions sufficient to
satisfy all of the requirements of
110(a)(2)(D) for the 2010 NO2 NAAQS.
With respect to the requirements of
110(a)(2)(D)(i)(II), i.e., prongs 3 and 4,
and 110(a)(2)(D)(ii), EPA is proposing to
approve the SIP submission based on
the rationale presented in a June 20,
2013 Federal Register notice approving
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25071
New York’s Infrastructure SIP for the
1997 8-hour ozone and 1997 and 2006
PM2.5 NAAQS (78 FR 37122; June 20,
2013). As that rationale was presented
in some detail in the June 20, 2013
notice, it is not repeated in today’s
proposal. We are, of course, accepting
comments on that rationale as it applies
to our proposed approval of New York’s
Infrastructure SIP for the NO2 NAAQS.
The New York SIP contains
provisions to address the requirements
of 110(a)(2)(D)(i)(I), i.e. prongs 1 and 2
of 110(a)(2)(D)(i), with respect to the
NO2 NAAQS.18 EPA reviewed New
York’s May 8, 2013 infrastructure SIP
submittal for the 2010 NO2 NAAQS and,
based on that review and EPA’s review
of relevant air quality data, EPA is
proposing to determine that New York’s
SIP includes adequate provisions to
prohibit sources or other emission
activities within the State from emitting
NOX in amounts that will contribute
significantly to nonattainment or
interfere with maintenance by any other
state with respect specifically to the
NO2 NAAQS. NO2 is a component of
NOX.
The EPA approved New York SIP
presently includes requirements for
emissions limits on NOX including, but
not limited to, Title 6 of the New York
Codes, Rules and Regulations (6
NYCRR) Parts 212, 217, 218, 219, 220,
224, 227–2, and 249. See 40 CFR 40 CFR
52.1670(c).
—Part 212—Imposes reasonably
available control technology (RACT)
on major stationary sources not
otherwise covered by other
regulations.
—Part 217—Requires enhanced
inspection and maintenance of lightduty motor vehicles.
—Part 218—Establishes emission
standards for motor vehicles and
motor vehicle engines.
—Part 219—Imposes controls on various
type of incinerators.
—Part 220—Imposes RACT on
emissions from cement kilns.
—Part 224—Imposes controls on NO2
emissions from nitric acid plants.
18 In accordance with the decision of the U.S.
Court of Appeals for the District of Columbia, EPA
at this time is not treating the 110(a)(2)(D)(i)(I)
portion of the SIP submission from New York
(which is part of the larger May 8, 2013 SIP
submission for the 2010 NO2 NAAQS) as a required
SIP submission. See EME Homer City Generation,
L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012), cert.
granted 133 S.Ct. 2857 (2013). On June 24, 2013,
the Supreme Court granted the petitions of the
United States and others and agreed to review the
merits of the D.C. Circuit decision in EME Homer
City during the Court’s 2013 term. Regardless of
whether a particular SIP submission is considered
‘‘required,’’ however, section 110(k)(2) of the CAA
requires EPA to act on the submission.
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—Part 227–2—Imposes RACT on utility
and industrial boilers, combustion
turbines, stationary internal
combustion engines and other
combustion installations (major
facility of NOX that contains an
emission source type not regulated
under the other Parts). Major facilities
existing prior to June 1, 2010 must
comply with new NOX RACT
emission limits by July 1, 2014.
—Part 249—Applies best available
retrofit technology (BART) to any
stationary source that has been
determined to be BART-eligible and
whose emissions require control for
the purpose of reducing regional haze.
Part 249 requires facilities to submit
source- specific BART proposals to
New York. This rule applies to
applicable BART eligible sources
including utility boilers and
industrial sources such as boilers,
cement plants etc.
In addition, all major stationary
sources of NO2 are subject to the SIPapproved requirements for prevention of
significant deterioration (PSD) and
nonattainment new source review with
Emission Offset Provisions in 6 NYCRR
Part 231 which provide preconstruction
review and permitting requirements in
attainment and nonattainment areas.
The requirements of Part 231 help
ensure that no new or modified NO2
emitting source will cause or contribute
to any potential exceedances of the NO2
NAAQS.
On February 17, 2012 (77 FR 9532),
EPA promulgated a rule that established
air quality designations for all areas of
the country for the 2010 NO2 NAAQS
based on air quality monitoring data for
the period 2008–2010. Based upon this
2008–2010 air quality monitoring data,
EPA determined that no area of the
country is violating the 2010 NO2
NAAQS. EPA reviewed 2008–2012 NO2
air quality monitoring data for New
York, including the Saint Regis Mohawk
Tribe, as well as the states surrounding
or bordering New York within 50
kilometers of New York’s boarders,
including Vermont, Massachusetts,
Connecticut, New Jersey, and
Pennsylvania. EPA selected fifty
kilometers from New York for reviewing
design values at monitors because 50
kilometers is the standard distance for
modeling analysis in EPA’s Guideline
on Air Quality Models (Appendix W to
40 CFR Part 51) and EPA is acting
consistent with that Guideline. The
most recent design values 19 (DVs) that
are computed using quality-assured and
certified ambient air monitoring data
using the Federal Reference method or
equivalent data is reported by states,
tribes and local agencies to EPA’s Air
Quality System (AQS). Data for 2008–
2010, 2009–2011 and 2010–2012 for
monitors in states surrounding or
bordering New York within 50
kilometers of New York are in Table 1
below and show that the DVs are well
below the NAAQS for NO2. The level of
the 1-hour NAAQS for NO2 is 100 parts
per billion (ppb) and the form is the 3year average of the annual 98th
percentile of the daily 1-hour maximum.
In the states surrounding and bordering
New York within the 50 kilometers
reviewed by EPA, there are no areas
with design values for 2008–2010,
2009–2011 and 2010–2012 that exceed
the 2010 NO2 NAAQS. For example, the
highest DV for 2008–2010 is 73 (Union,
NJ), well below the 100 ppb NAAQS.
See Table 1 below for DVs surrounding
and bordering New York within 50
kilometers of New York.
TABLE 1—DESIGN VALUES SURROUNDING AND BORDERING NEW YORK STATE 20
County
Site
2008–2010
Final DV
(ppb)
2009–2011
Final DV
(ppb)
2010–2012
Final DV
(ppb)
NY .....................
NY .....................
NY .....................
NY .....................
NY .....................
MA ....................
MA ....................
Conn .................
Conn .................
Conn .................
NJ .....................
NJ .....................
NJ .....................
NJ .....................
NJ .....................
NJ .....................
NJ .....................
PA .....................
PA .....................
VT .....................
VT .....................
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State
Bronx ................................................................................
Erie ...................................................................................
Nassau ..............................................................................
Queens .............................................................................
Steuben ............................................................................
Hampden ..........................................................................
Hampshire ........................................................................
Fairfield .............................................................................
Hartford .............................................................................
New Haven .......................................................................
Bergen ..............................................................................
Essex ................................................................................
Hudson .............................................................................
Mercer ...............................................................................
Middlesex ..........................................................................
Morris ................................................................................
Union ................................................................................
Erie ...................................................................................
Lackawanna ......................................................................
Chittenden ........................................................................
Rutland .............................................................................
36–005–0133
36–029–0005
36–059–0005
36–081–0124
36–101–0003
25–013–0016
25–015–4002
09–001–9003
09–003–1003
09–009–0027
34–003–0006
34–013–1003
34–017–0006
34–021–0005
34–023–0011
34–027–3001
34–039–0004
42–049–0003
42–069–2006
50–007–0014
50–021–0002
67
71
57
68
........................
49
28
50
45
........................
67
62
........................
41
49
38
73
45
44
41
41
66
........................
........................
........................
14
50
31
........................
49
59
........................
64
65
........................
48
38
71
........................
45
........................
........................
63
........................
........................
........................
........................
47
27
........................
46
57
........................
60
........................
........................
45
37
70
........................
41
........................
........................
Based on this air quality monitoring
data analysis and EPA’s review of NOX
emission trends within New York, EPA
does not expect NOX emissions in New
York to increase significantly
particularly in light of the New York SIP
approved emission limits and New
Source Review provisions.
EPA’s analysis of the air quality
monitoring data and emission trends
also supports EPA’s conclusion that
NO2 emissions are not increasing
significantly in the states surrounding
New York and do not appear likely to
significantly increase as a result of
emissions from New York especially
with the New York SIP approved
provisions for NOX. EPA therefore does
19 For the most recent design values, see https://
www.epa.gov/airtrends/values.html.
20 DVs for the Saint Regis Mohawk Tribe of New
York are not shown in Table 1 since EPA
determined there is no valid data. Wherever there
is no data shown in Table 1, EPA has no data for
those time periods.
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not expect monitors identified in the
table above which all have DVs well
below the NO2 NAAQS to have
difficulty maintaining the NAAQS for
NO2. EPA proposes to conclude that
New York emission sources are not
significantly contributing to
nonattainment in another state for the
NO2 NAAQS and are not likely to
interfere with maintenance of the NO2
NAAQS in another state.
Because the 2008–2010, the 2009–
2011 and also the 2010–2012 qualityassured and certified air quality
monitoring data identified above for
areas surrounding or bordering New
York State within 50 kilometers of New
York are well below the NO2 NAAQS
and because NOX emission trends from
New York sources do not appear to be
increasing, EPA proposes to find that
New York’s federally enforceable SIP
provisions with NOX emission limits for
NOX emission sources contain adequate
provisions to ensure New York emission
sources will not interfere with
maintenance or contribute significantly
to nonattainment in another state with
respect to the NO2 NAAQS.
Based upon EPA’s review of the air
quality data and the State’s submittal,
EPA is proposing to determine that the
State has met its obligations pursuant to
110(a)(2)(D)(i)(I) with respect to the
2010 NO2 NAAQS.
Element G: Emergency power: Section
110(a)(2)(G) requires states to provide
for authority to address activities
causing imminent and substantial
endangerment to public health,
including contingency plans to
implement the emergency episode
provisions in their SIPs.
EPA requires that Infrastructure SIP
submittals should meet the applicable
contingency plan requirements of 40
CFR part 51, subpart H (40 CFR 51.150
through 51.153) (‘‘Prevention of Air
Pollution Emergency Episodes’’).
Subpart H requires states that have air
quality control regions identified as
either Priority I, Priority IA or Priority
II to develop emergency episode
contingency plans. States are required to
develop emergency episode plans for
any area that has monitored and
recorded annual arithmetic mean NO2
levels greater than 100 mg/m3 (0.06 ppm
(60 ppb)).21 Areas which do not meet
this level are considered to be Priority
III. 40 CFR 51.150(f). In accordance with
the guidance, Priority III regions are not
required to develop emergency episode
21 Section 51.150, Classification of regions for
episode plans, was last amended on July 20, 1993
(58 FR 38822) and therefore does not include
ambient concentration levels for establishing
Priority I Regions for the 1-hour NO2 NAAQS that
was promulgated on February 9, 2010 (75 FR 6474).
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plans which EPA interprets to mean the
contingency plans otherwise required
under section 51.152. 40 CFR 51.152(c).
Since 2010, air-quality monitors in
New York State show that annual
arithmetic mean NO2 levels have been
below the 100 mg/m3 (0.06 ppm (60
ppb)) threshold. In addition, since 2010,
ambient air quality levels in New York
State have been below the 1-hour NO2
NAAQS of 100 ppb. Based on certified
and quality assured air quality data,
New York should be classified as a
Priority III region and, therefore,
emergency episode plans for NO2 are
not required.
However, in general and for the NO2
standard, the section 110(a)(2)(G)
requirements are addressed by New
York’s ECL, Articles 3 and 19, which are
implemented through 6 NYCRR Part
207, ‘‘Control Measures for Air
Pollution Episodes.’’ Among other
things, 6 NYCRR Part 207 requires
persons who own a significant air
contamination source to submit a
proposed episode action plan to the
NYSDEC Commissioner, and enable the
Commissioner to designate air pollution
episodes which trigger the action plans.
Pursuant to Part 207.3(a), the NYSDEC
Commissioner shall have on file and
make available the criteria used in
determining the need to designate
episodes. The NYSDEC maintains an
‘‘Episode Action Plan’’ with guidelines
and protocols/criteria to be followed in
case of an air pollution emergency. The
NYSDEC’s Episode Action Plan has
been updated to reflect the Significant
Harm Levels (SHLs) that address the 1hour NO2 NAAQS proposed by EPA on
July 15, 2009. Therefore, EPA proposes
that New York has met the requirements
of section 110(a)(2)(G) for the 2010 1hour NO2 NAAQS.
VII. What action is EPA taking?
EPA is proposing to approve New
York’s submittal as fully meeting the
infrastructure requirements for the 2010
primary NO2 NAAQS for all section
110(a)(2) elements and sub-elements, as
follows: (A), (B), (C), (D), (E), (F), (G),
(H), (J), (K), (L), and (M).
EPA is not acting on New York’s
submittal as it relates to nonattainment
provisions, the NSR program required
by part D in section 110(a)(2)(C) and the
measures for attainment required by
section 110(a)(2)(I), as part of the
infrastructure SIPs because the State’s
infrastructure SIP submittal does not
include nonattainment requirements
and EPA will act on them when, if
necessary, they are submitted.
EPA is soliciting public comments on
the issues discussed in this proposal.
These comments will be considered
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25073
before EPA takes final action. Interested
parties may participate in the Federal
rulemaking procedure by submitting
written comments to the EPA Regional
Office listed in the ADDRESSES section of
this Federal Register, or by submitting
comments electronically, by mail, or
through hand delivery or courier
following the directions in the
ADDRESSES section of this Federal
Register.
VIII. 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 action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• 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 (Public Law 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
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25074
Federal Register / Vol. 79, No. 85 / Friday, May 2, 2014 / Proposed Rules
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 (65 FR 67249,
November 9, 2000), 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 preempt
tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Volatile
organic compounds.
• Email: R10-Public_Comments@
epa.gov.
• Mail: Mr. Keith Rose, U.S. EPA
Region 10, Office of Air, Waste and
Toxics, AWT–107, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101.
• Hand Delivery/Courier: U.S. EPA
Region 10, 1200 Sixth Avenue, Suite
900, Seattle WA 98101. Attention: Keith
Rose, Office of Air, Waste and Toxics,
AWT–107. Such deliveries are only
accepted during normal hours of
operation, and special arrangements
should be made for deliveries of boxed
information.
Please see the direct final rule which is
located in the Rules section of this
Federal Register for detailed
instructions on how to submit
comments.
Authority: 42 U.S.C. 7401 et seq.
FOR FURTHER INFORMATION CONTACT:
Dated: April 21, 2014.
Judith A. Enck,
Regional Administrator, Region 2.
Keith Rose at telephone number: (206)
553–1949, email address: rose.keith@
epa.gov, or the above EPA, Region 10
address.
[FR Doc. 2014–09982 Filed 5–1–14; 8:45 am]
BILLING CODE 6560–50–P
For
further information, please see the
direct final action, of the same title,
which is located in the Rules section of
this Federal Register. The EPA is
simultaneously approving the State’s
SIP revision as a direct final rule
without prior proposal because the EPA
views this as a noncontroversial SIP
revision and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the preamble to
the direct final rule. If the EPA receives
no adverse comments, the EPA will not
take further action on this proposed
rule.
If the EPA receives adverse
comments, the EPA will withdraw the
direct final rule and it will not take
effect. The EPA will address all public
comments in a subsequent final rule
based on this proposed rule. The EPA
will not institute a second comment
period on this action. Any parties
interested in commenting on this action
should do so at this time. Please note
that if we receive adverse comment on
an amendment, paragraph, or section of
this rule and if that provision may be
severed from the remainder of the rule,
the EPA may adopt as final those
provisions of the rule that are not the
subject of an adverse comment.
SUPPLEMENTARY INFORMATION:
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2008–0122; FRL–9910–03Region 10]
Approval and Promulgation of State
Implementation Plans: Washington;
Puget Sound Ozone Maintenance Plan
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The EPA is proposing to
approve a maintenance plan for the
Central Puget Sound area to maintain
the 8-hour ozone National Ambient Air
Quality Standard (NAAQS) through
2015. This plan was submitted by the
Washington Department of Ecology as a
revision to its State Implementation
Plan on January 10, 2008. The
maintenance plan for this area meets all
Clean Air Act requirements, and
demonstrates that the Central Puget
Sound area will remain in attainment
with the 1997 and 2008 ozone NAAQS
through 2015.
DATES: Comments must be received on
or before June 2, 2014.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R10–
OAR–2008–0122, by any of the
following methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
TKELLEY on DSK3SPTVN1PROD with PROPOSALS
SUMMARY:
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Dated: April 10, 2014.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.
[FR Doc. 2014–09880 Filed 5–1–14; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 80
[EPA–HQ–OAR–2012–0546; FRL–9910–24–
OAR]
RIN 2060–AS21
Regulation of Fuels and Fuel
Additives: 2013 Cellulosic Biofuel
Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to revise the
2013 cellulosic biofuel standard
published on August 15, 2013. This
action follows from EPA having granted
two petitioners’ requests for
reconsideration of the 2013 cellulosic
biofuel standard. EPA granted
reconsideration because one of the two
companies that EPA expected to
produce cellulosic biofuel in 2013
announced soon after EPA signed its
final rule that it intended to produce
substantially lower volumes of
cellulosic biofuel in 2013 than it had
earlier reported to EPA. Since the
cellulosic biofuel standard was based on
EPA’s projection of cellulosic biofuel
production in 2013, EPA deemed this
new information to be of central
relevance to the rule, warranting
reconsideration. On reconsideration,
EPA is directed to base the standard on
the lower of ‘‘projected’’ production of
cellulosic fuel in 2013 or the cellulosic
biofuel applicable volume set forth in
the statute. Since data are available to
show actual production volumes for
2013, EPA’s ‘‘projection’’ and proposal
are based on actual cellulosic biofuel
production in 2013. This action only
affects the 2013 cellulosic biofuel
standard; all other RFS standards
remain unchanged. EPA is proposing a
revised cellulosic biofuel standard of
0.0005% for 2013. In the ‘‘Rules and
Regulations’’ section of this Federal
Register, we are making this same
amendment as a direct final rule. If we
receive no adverse comment, the direct
final rule will go into effect and we will
not take further action on this proposed
rule.
DATES: A request for a public hearing
must be received by May 19, 2014. If a
public hearing request is received, EPA
will publish a document in the Federal
Register indicating the time and place
for the hearing. If a public hearing is
held, written comments must be
received within 30 days after the date of
the hearing. If no public hearing is held
SUMMARY:
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]]>Agencies
[Federal Register Volume 79, Number 85 (Friday, May 2, 2014)]
[Proposed Rules]
[Pages 25066-25074]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09982]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2013-0527, FRL-9910-16-Region 2]
Approval and Promulgation of Implementation Plans; New York;
Infrastructure SIP for the 2010 Nitrogen Dioxide Primary Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve certain elements of New York's State Implementation Plan (SIP)
revision submitted to demonstrate that the State meets the requirements
of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2010
National Ambient Air Quality Standard (NAAQS) for nitrogen dioxide
(NO2). Section 110(a) of the CAA requires that each state
adopt and submit a SIP for the implementation, maintenance and
enforcement of each NAAQS promulgated by the EPA and is commonly
referred to as an infrastructure SIP.
DATES: Comments must be received on or before June 2, 2014.
ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2013-0527, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
Email: Ruvo.Richard@epa.gov.
Fax: 212-637-3901.
Mail: Richard Ruvo, Chief, Air Programs Branch,
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th
Floor, New York, New York 10007-1866.
Hand Delivery: Richard Ruvo, 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.
Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2013-0527. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in https://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway,
25th Floor, New York, New York 10007-1866. EPA requests, if at all
possible, that you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8:30 a.m.
to 4:30 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New
York, New York 10007-1866, (212) 637-4249, or by email at
gardella.anthony@epa.gov.
SUPPLEMENTARY INFORMATION:
I. What action is EPA proposing?
II. What is the background information?
III. What elements are required under section 110(a)(1) and (2)?
IV. What is EPA's approach to the review of infrastructure SIP
submissions?
V. What did New York submit?
VI. How has the State addressed the elements of the section
110(a)(1) and (2) ``infrastructure'' provisions?
VII. What action is EPA taking?
VIII. Statutory and Executive Order Reviews
I. What action is EPA proposing?
EPA is proposing to approve certain elements of the State of New
York Infrastructure SIP as meeting the section 110(a) infrastructure
requirements of the Clean Air Act (CAA) for the 2010 NO2
National Ambient Air Quality Standard (NAAQS or standard). As explained
below, the State has the necessary infrastructure, resources, and
general authority to implement the 2010 NO2 standard.
II. What is the background information?
On February 9, 2010, EPA promulgated a new, 1-hour primary NAAQS
for NO2 (2010 NO2 NAAQS) while retaining the
annual primary NAAQS for NO2 (75 FR 6474). The 2010
NO2 NAAQS is based on 1-hour three year average
concentrations.\1\ The 2010 NO2 NAAQS is 100 parts per
billion (ppb) and the new standard supplements the existing primary
annual standard of 53 ppb. The secondary NO2 NAAQS remains
unchanged and is the same as the primary annual average NO2
NAAQS, i.e., 53 ppb.\2\
---------------------------------------------------------------------------
\1\ The 2010 NO2 NAAQS is expressed as the three year
average of the 98th percentile of the annual distribution of daily
maximum 1-hour average concentrations.
\2\ The official level of the annual NO2 NAAQS is
0.053 parts per million (ppm), equal to 53 ppb which is shown here
for the purpose of clearer comparison to the 1-hour NO2
NAAQS.
---------------------------------------------------------------------------
Section 110(a)(1) provides the procedural and timing requirements
for State Implementation Plans (SIPs). Section 110(a)(2) lists specific
elements that states must meet for SIP requirements related to a newly
established or revised NAAQS. Sections 110(a)(1) and (2) of the CAA
require, in part, that states submit to EPA plans to implement,
maintain and enforce each of the NAAQS promulgated by EPA. By statute,
SIPs meeting the requirements of section 110(a)(1) and (2) are to be
submitted by states within three years
[[Page 25067]]
after promulgation of a new or revised standard. These SIPs are
commonly called infrastructure SIPs. Based on the February 9, 2010
promulgation date, infrastructure SIPs for the 2010 NO2
NAAQS were due on February 9, 2013.
III. What elements are required under section 110(a)(1) and (2)?
The infrastructure requirements are listed in EPA's October 2,
2007, memorandum entitled ``Guidance on SIP Elements Required Under
Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards'' and September
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards. In addition,
in a memorandum dated September 13, 2013, EPA released new guidance
entitled ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' \3\
This new guidance (2013 Guidance) addresses the 2008 ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS,
as well as infrastructure SIPs for new or revised NAAQS promulgated in
the future. The 14 elements required to be addressed are as follows:
(1) Emission limits and other control measures; (2) ambient air quality
monitoring/data system; (3) program for enforcement of control
measures; (4) interstate transport; (5) adequate resources; (6)
stationary source monitoring system; (7) emergency power; (8) future
SIP revisions; (9) consultation with government officials; (10) public
notification; (11) prevention of significant deterioration (PSD) and
visibility protection; (12) air quality modeling/data; (13) permitting
fees, and (14) consultation/participation by affected local entities.
---------------------------------------------------------------------------
\3\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' can
be found at: https://www.epa.gov/airquality/urbanair/sipstatus/infrastructure.html.
---------------------------------------------------------------------------
Two elements identified in section 110(a)(2) are not governed by
the 3 year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not due
within 3 years after promulgation of a new or revised NAAQS, but rather
due at the time that the nonattainment area plan requirements are due
pursuant to section 172. See 77 FR 46354 (August 3, 2012); 77 FR 60308
(October 3, 2012, footnote 1). These requirements are: (1) submissions
required by section 110(a)(2)(C) to the extent that subsection refers
to a permit program as required in part D Title I of the CAA, and (2)
submissions required by section 110(a)(2)(I) which pertain to the
nonattainment planning requirements of part D, Title I of the CAA. As a
result, this action does not address the nonattainment planning
requirements related to section 110(a)(2)(C) or 110(a)(2)(I).
IV. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from New York State that
addresses the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2010 NO2 NAAQS. The requirement for states
to make a SIP submission of this type arises out of CAA section
110(a)(1). Pursuant to section 110(a)(1), states must make SIP
submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\4\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
---------------------------------------------------------------------------
\4\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
---------------------------------------------------------------------------
The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\5\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\6\ This ambiguity illustrates
[[Page 25068]]
that rather than apply all the stated requirements of section 110(a)(2)
in a strict literal sense, EPA must determine which provisions of
section 110(a)(2) are applicable for a particular infrastructure SIP
submission.
---------------------------------------------------------------------------
\5\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\6\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
---------------------------------------------------------------------------
Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\7\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\8\
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\7\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\8\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants,
for example because the content and scope of a state's infrastructure
SIP submission to meet this element might be very different for an
entirely new NAAQS than for a minor revision to an existing NAAQS.\9\
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\9\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\10\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\11\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\12\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the
[[Page 25069]]
applicable statutory provisions of section 110(a)(2), as appropriate.
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\10\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\11\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\12\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's SIP
appropriately addresses the requirements of section 110(a)(2)(E)(ii)
and section 128. The 2013 Guidance explains EPA's interpretation that
there may be a variety of ways by which states can appropriately
address these substantive statutory requirements, depending on the
structure of an individual state's permitting or enforcement program
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are
addressed by the state, the substantive requirements of section 128 are
necessarily included in EPA's evaluation of infrastructure SIP
submissions because section 110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section 128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
GHGs. By contrast, structural PSD program requirements do not include
provisions that are not required under EPA's regulations at 40 CFR
51.166 but are merely available as an option for the state, such as the
option to provide grandfathering of complete permit applications with
respect to the 2012 PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of provisions EPA considers irrelevant in
the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor new source review program and whether
the program addresses the pollutants relevant to that NAAQS. In the
context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\13\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\13\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach
with respect to infrastructure SIP requirements is based on a
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA
provides other avenues and mechanisms to address specific substantive
deficiencies in existing SIPs. These other statutory tools allow EPA to
take appropriately tailored action, depending upon the nature and
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes
EPA to issue a ``SIP call'' whenever the Agency determines that a
state's SIP is substantially inadequate to attain or maintain the
NAAQS, to mitigate interstate transport, or to otherwise comply with
the CAA.\14\ Section 110(k)(6) authorizes EPA to correct errors in past
actions, such as past approvals of SIP submissions.\15\
[[Page 25070]]
Significantly, EPA's determination that an action on a state's
infrastructure SIP submission is not the appropriate time and place to
address all potential existing SIP deficiencies does not preclude EPA's
subsequent reliance on provisions in section 110(a)(2) as part of the
basis for action to correct those deficiencies at a later time. For
example, although it may not be appropriate to require a state to
eliminate all existing inappropriate director's discretion provisions
in the course of acting on an infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that EPA relies upon in the course of addressing such deficiency in a
subsequent action.\16\
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\14\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\15\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\16\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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V. What did New York submit?
New York's section 110 infrastructure submittal was submitted by
the New York State Department of Environmental Conservation (NYSDEC) on
May 8, 2013, as supplemented on May 23, 2013, and addressed the 2010
NO2 NAAQS. New York's May 2013 section 110 submittals
demonstrate how the State, where applicable, has a plan in place that
meets the requirements of section 110 for the 2010 NO2
NAAQS. This plan references the current New York Air Quality SIP, the
New York Codes of Rules and Regulations (NYCRR), the New York
Environmental Conservation Law (ECL) and the New York Public Officer's
Law (POL). The NYCRR, ECL and POL referenced in the submittal are
publicly available. New York's SIP and air pollution control
regulations that have been previously approved by EPA and incorporated
into the New York SIP can be found at 40 CFR 52.1670 and are posted on
the Internet at: https://www.epa.gov/region02/air/sip/ny_reg.htm.
VI. How has the State addressed the elements of the section 110(a)(1)
and (2) ``infrastructure'' provisions?
EPA compared New York's Infrastructure SIP submittals for the 2010
NO2 NAAQS to New York's Infrastructure SIP submittals for
the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter
(PM2.5) NAAQS. On June 20, 2013, EPA took final action [see
78 FR 37122] approving certain elements and sub-elements of New York's
1997 8-hour ozone and the 1997 and 2006 PM2.5 Infrastructure
SIPs. Based upon EPA's comparison, EPA has determined that the
information provided in New York's 2010 NO2 Infrastructure
SIP is nearly identical to the information provided in New York's
Infrastructure SIP submittals for the 1997 8-hour ozone and 1997 and
2006 PM2.5 NAAQS. Infrastructure SIPs for different criteria
pollutants can have common aspects which are identical for each NAAQS
(e.g., authority to promulgate emission limitations, enforcement, air
quality modeling capabilities, adequate personnel, resources and legal
authority). The rationale for approving certain elements of New York's
Infrastructure SIP for NO2 is the same as the rationale for
approving those elements of New York's 1997 8-hour ozone and 1997 and
2006 PM2.5 Infrastructure SIPs. Since the rationale for
approving certain elements of New York's NO2 Infrastructure
SIP is the same as the rationale for approving certain elements of New
York's 1997 8-hour ozone and 1997 and 2006 PM2.5
Infrastructure SIPs, EPA is not repeating this evaluation in today's
proposal. Instead, the reader is referred to EPA's evaluation of the
three SIP submittals (the 1997 8-hour ozone and 1997 and 2006
PM2.5 Infrastructure SIPs) detailed in the following three
documents: (1) ``Technical Support Document for EPA's Proposed
Rulemaking for the New York's State Implementation Plan Revision: State
Implementation Plan Revision For Meeting the Infrastructure
Requirements In the Clean Air Act Dated December 13, 2007, October 2,
2008 and March 15, 2010'' (TSD); (2) EPA's proposed approval dated
April 30, 2013 (78 FR 25236); and, (3) EPA's June 20, 2013 final rule
approving certain elements of New York's Infrastructure SIPs for the
1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS (78 FR
37122). These three documents are available in the electronic docket
for today's proposed action at www.regulations.gov. We are, of course,
accepting comments on that rationale as it applies to our proposed
approval of New York's Infrastructure SIP for the NO2 NAAQS.
EPA is proposing approval of the following elements and sub-
elements of New York's Infrastructure SIP for NO2:
110(a)(2)(A) [Emission limits and other control measures]; 110(a)(2)(B)
[Ambient air quality monitoring/data system]; 110(a)(2)(C) [Program for
enforcement of control measures]; 110(a)(2)(D) [Interstate transport];
110(a)(2)(E) [Adequate resources]; 110(a)(2)(F) [Stationary source
monitoring]; 110(a)(2)(G) [Emergency power]; 110(a)(2)(H) [Future SIP
Revisions]; 110(a)(2)(J) [Consultation with government official, public
notification, PSD, and visibility protection]; 110(a)(2)(K) [Air
quality and modeling/data]; 110(a)(2)(L) [Permitting fees];
110(a)(2)(M) [Consultation/participation by affected local entities].
As stated above, there are certain aspects of the elements of New
York's Infrastructure SIP for the 2010 NO2 NAAQS that are
common to New York's 1997 8-hour ozone and 1997 and 2006
PM2.5 Infrastructure SIPs that EPA approved on June 20, 2013
and therefore EPA is not repeating the rationale for approving the
following elements of New York's Infrastructure SIP for the 2010
NO2 NAAQS in today's proposal: Elements A, D(i)(II), D(ii),
E, F, H, I, J, K, L, and M.
As discussed in the following sections, for those elements of New
York's NO2 Infrastructure SIP that differ from New York's
1997 8-hour ozone and 1997 and 2006 PM2.5 Infrastructure
SIPs, EPA has reviewed and evaluated the aspects of those elements,
namely elements B, C, D(i)(I) and G.
Element B: Ambient air quality monitoring/data system: Section
110(a)(2)(B) requires SIPs to include provisions to provide for
establishment and operation of ambient air quality monitors, to
monitor, compile and analyze ambient air quality data, and to make
these data available to EPA upon request. EPA requires that states
establish a new ambient air quality monitoring and reporting
requirements for NO2 as follows: (1) In urban areas near
major roads and other locations where maximum concentration is
expected; (2) community wide monitoring in large urban areas; and (3)
in locations where EPA identifies monitoring will help protect
communities that are susceptible and vulnerable to NO2-
related health effects. New York addressed EPA's new monitoring
requirements when it submitted its Annual Monitoring Network Review
Plan (Plan) of 2013 on July 18, 2013. EPA approved this Plan on
September 5, 2013. EPA is therefore
[[Page 25071]]
proposing to determine that New York has met the requirements of
section 110(a)(2)(B) of the CAA with respect to the 2010 NO2
NAAQS. A copy of New York's 2013 Monitoring Plan and EPA's September 5,
2013 approval letter are in the docket for today's proposal at
www.regulations.gov.
Element C: Program for enforcement of control measures: Section
110(a)(2)(C) requires states to have a plan that includes a program
providing for enforcement of all SIP measures and the regulation of the
modification and construction of any stationary source, including a
program to meet Prevention of Significant Deterioration (PSD) of Air
Quality and minor source new source review.
New York's Infrastructure SIP for NO2 references the
State's PSD and Nonattainment New Source Review (NNSR) permitting
requirements contained in 6 NYCRR Part 231, Part 200 and Part 201. EPA
approved these rules into the SIP on November 17, 2010 (75 FR 70140).
New York's minor source new source review program is regulated under
Part 201.
EPA has reviewed and evaluated New York's Infrastructure SIP for
the 2010 NO2 NAAQS for meeting the requirements of element
C. While the Infrastructure SIP does not specifically reference
NO2, it refers to the State's PSD permitting requirements in
Part 231 which regulates oxides of nitrogen (NOX) which
includes NO2. In addition, element C of New York's
Infrastructure SIP for the 2010 NO2 NAAQS refers to 8-hour
ozone. NOX is a precursor of ozone and PM2.5, and
NO2 is one of the components of NOX. Moreover,
the PSD portion of Part 231 regulates the construction of proposed new
or modified facilities that are required to demonstrate in their permit
application that allowable emission increases from the facilities, in
conjunction with all other applicable emission increases or reductions
(including secondary emissions), would not, among other things, cause
or significantly contribute to air pollution in violation of any
national ambient air quality standard \17\ in any air quality control
region. Since NO2 is a NAAQS, the PSD provisions of Part 231
are applicable to NO2. For these reasons, EPA concludes that
by referencing Part 231, which is part of New York's approved SIP, New
York's Infrastructure SIP addresses the PSD requirements of section
110(a)(2)(C) for NO2.
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\17\ EPA has set NAAQS for six principal pollutants, as follows:
Carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2),
ozone (O3), particle pollution (PM), and sulfur dioxide
(SO2).
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Therefore, EPA proposes to find that the State has adequate
authority and regulations to ensure that SIP-approved control measures
are enforced. EPA also finds that based on the approval of New York's
PSD program, New York has the authority to regulate the construction of
new or modified stationary sources to meet the PSD program
requirements. EPA is proposing to determine that New York has met the
requirements of section 110(a)(2)(C) and (J) of the CAA with respect to
the 2010 NO2 NAAQS. It should be noted that the PSD
provisions of Part 231 address the requirements of section 110(a)(2)(J)
as well as section 110(a)(2)(C).
Element D: Interstate transport: Section 110(a)(2)(D) of the Clean
Air Act is divided into two subsections, 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). The first of these, 110(a)(2)(D)(i), in turn,
contains four ``prongs'' the first two of which appear in
110(a)(2)(D)(i)(I) and the second two of which appear in
110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) prohibit any
source or other type of emissions activity within the State from
emitting any air pollutants in amounts which will contribute
significantly to nonattainment in any other state with respect to any
primary or secondary NAAQS (prong 1), or interfere with maintenance by
any other state with respect to any primary or secondary NAAQS (prong
2). The two prongs in 110(a)(2)(D)(i)(II) prohibit any source or other
type of emissions activity within the State from emitting any air
pollutants in amounts which will interfere with measures required to be
included in the applicable implementation plan for any other state
under part C to prevent significant deterioration of air quality (prong
3) or to protect visibility (prong 4). Subsection 110(a)(2)(D)(ii)
addresses interstate and international pollution abatement, and
requires SIPs to include provisions insuring compliance with sections
115 and 126 of the CAA, relating to interstate and international
pollution abatement.
In this action, EPA is proposing to approve the 110(a)(2)(D)
portion of the New York SIP submission and determine that the existing
New York SIP contains provisions sufficient to satisfy all of the
requirements of 110(a)(2)(D) for the 2010 NO2 NAAQS. With
respect to the requirements of 110(a)(2)(D)(i)(II), i.e., prongs 3 and
4, and 110(a)(2)(D)(ii), EPA is proposing to approve the SIP submission
based on the rationale presented in a June 20, 2013 Federal Register
notice approving New York's Infrastructure SIP for the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS (78 FR 37122; June 20,
2013). As that rationale was presented in some detail in the June 20,
2013 notice, it is not repeated in today's proposal. We are, of course,
accepting comments on that rationale as it applies to our proposed
approval of New York's Infrastructure SIP for the NO2 NAAQS.
The New York SIP contains provisions to address the requirements of
110(a)(2)(D)(i)(I), i.e. prongs 1 and 2 of 110(a)(2)(D)(i), with
respect to the NO2 NAAQS.\18\ EPA reviewed New York's May 8,
2013 infrastructure SIP submittal for the 2010 NO2 NAAQS
and, based on that review and EPA's review of relevant air quality
data, EPA is proposing to determine that New York's SIP includes
adequate provisions to prohibit sources or other emission activities
within the State from emitting NOX in amounts that will
contribute significantly to nonattainment or interfere with maintenance
by any other state with respect specifically to the NO2
NAAQS. NO2 is a component of NOX.
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\18\ In accordance with the decision of the U.S. Court of
Appeals for the District of Columbia, EPA at this time is not
treating the 110(a)(2)(D)(i)(I) portion of the SIP submission from
New York (which is part of the larger May 8, 2013 SIP submission for
the 2010 NO2 NAAQS) as a required SIP submission. See EME
Homer City Generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012),
cert. granted 133 S.Ct. 2857 (2013). On June 24, 2013, the Supreme
Court granted the petitions of the United States and others and
agreed to review the merits of the D.C. Circuit decision in EME
Homer City during the Court's 2013 term. Regardless of whether a
particular SIP submission is considered ``required,'' however,
section 110(k)(2) of the CAA requires EPA to act on the submission.
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The EPA approved New York SIP presently includes requirements for
emissions limits on NOX including, but not limited to, Title
6 of the New York Codes, Rules and Regulations (6 NYCRR) Parts 212,
217, 218, 219, 220, 224, 227-2, and 249. See 40 CFR 40 CFR 52.1670(c).
--Part 212--Imposes reasonably available control technology (RACT) on
major stationary sources not otherwise covered by other regulations.
--Part 217--Requires enhanced inspection and maintenance of light-duty
motor vehicles.
--Part 218--Establishes emission standards for motor vehicles and motor
vehicle engines.
--Part 219--Imposes controls on various type of incinerators.
--Part 220--Imposes RACT on emissions from cement kilns.
--Part 224--Imposes controls on NO2 emissions from nitric
acid plants.
[[Page 25072]]
--Part 227-2--Imposes RACT on utility and industrial boilers,
combustion turbines, stationary internal combustion engines and other
combustion installations (major facility of NOX that
contains an emission source type not regulated under the other Parts).
Major facilities existing prior to June 1, 2010 must comply with new
NOX RACT emission limits by July 1, 2014.
--Part 249--Applies best available retrofit technology (BART) to any
stationary source that has been determined to be BART-eligible and
whose emissions require control for the purpose of reducing regional
haze. Part 249 requires facilities to submit source- specific BART
proposals to New York. This rule applies to applicable BART eligible
sources including utility boilers and industrial sources such as
boilers, cement plants etc.
In addition, all major stationary sources of NO2 are
subject to the SIP-approved requirements for prevention of significant
deterioration (PSD) and nonattainment new source review with Emission
Offset Provisions in 6 NYCRR Part 231 which provide preconstruction
review and permitting requirements in attainment and nonattainment
areas. The requirements of Part 231 help ensure that no new or modified
NO2 emitting source will cause or contribute to any
potential exceedances of the NO2 NAAQS.
On February 17, 2012 (77 FR 9532), EPA promulgated a rule that
established air quality designations for all areas of the country for
the 2010 NO2 NAAQS based on air quality monitoring data for
the period 2008-2010. Based upon this 2008-2010 air quality monitoring
data, EPA determined that no area of the country is violating the 2010
NO2 NAAQS. EPA reviewed 2008-2012 NO2 air quality
monitoring data for New York, including the Saint Regis Mohawk Tribe,
as well as the states surrounding or bordering New York within 50
kilometers of New York's boarders, including Vermont, Massachusetts,
Connecticut, New Jersey, and Pennsylvania. EPA selected fifty
kilometers from New York for reviewing design values at monitors
because 50 kilometers is the standard distance for modeling analysis in
EPA's Guideline on Air Quality Models (Appendix W to 40 CFR Part 51)
and EPA is acting consistent with that Guideline. The most recent
design values \19\ (DVs) that are computed using quality-assured and
certified ambient air monitoring data using the Federal Reference
method or equivalent data is reported by states, tribes and local
agencies to EPA's Air Quality System (AQS). Data for 2008-2010, 2009-
2011 and 2010-2012 for monitors in states surrounding or bordering New
York within 50 kilometers of New York are in Table 1 below and show
that the DVs are well below the NAAQS for NO2. The level of
the 1-hour NAAQS for NO2 is 100 parts per billion (ppb) and
the form is the 3-year average of the annual 98th percentile of the
daily 1-hour maximum. In the states surrounding and bordering New York
within the 50 kilometers reviewed by EPA, there are no areas with
design values for 2008-2010, 2009-2011 and 2010-2012 that exceed the
2010 NO2 NAAQS. For example, the highest DV for 2008-2010 is
73 (Union, NJ), well below the 100 ppb NAAQS. See Table 1 below for DVs
surrounding and bordering New York within 50 kilometers of New York.
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\19\ For the most recent design values, see https://www.epa.gov/airtrends/values.html.
Table 1--Design Values Surrounding and Bordering New York State \20\
----------------------------------------------------------------------------------------------------------------
2009-2011 2010-2012
State County Site 2008-2010 Final DV Final DV
Final DV (ppb) (ppb) (ppb)
----------------------------------------------------------------------------------------------------------------
NY........................ Bronx............... 36-005-0133 67 66 63
NY........................ Erie................ 36-029-0005 71 .............. ..............
NY........................ Nassau.............. 36-059-0005 57 .............. ..............
NY........................ Queens.............. 36-081-0124 68 .............. ..............
NY........................ Steuben............. 36-101-0003 .............. 14 ..............
MA........................ Hampden............. 25-013-0016 49 50 47
MA........................ Hampshire........... 25-015-4002 28 31 27
Conn...................... Fairfield........... 09-001-9003 50 .............. ..............
Conn...................... Hartford............ 09-003-1003 45 49 46
Conn...................... New Haven........... 09-009-0027 .............. 59 57
NJ........................ Bergen.............. 34-003-0006 67 .............. ..............
NJ........................ Essex............... 34-013-1003 62 64 60
NJ........................ Hudson.............. 34-017-0006 .............. 65 ..............
NJ........................ Mercer.............. 34-021-0005 41 .............. ..............
NJ........................ Middlesex........... 34-023-0011 49 48 45
NJ........................ Morris.............. 34-027-3001 38 38 37
NJ........................ Union............... 34-039-0004 73 71 70
PA........................ Erie................ 42-049-0003 45 .............. ..............
PA........................ Lackawanna.......... 42-069-2006 44 45 41
VT........................ Chittenden.......... 50-007-0014 41 .............. ..............
VT........................ Rutland............. 50-021-0002 41 .............. ..............
----------------------------------------------------------------------------------------------------------------
Based on this air quality monitoring data analysis and EPA's review
of NOX emission trends within New York, EPA does not expect
NOX emissions in New York to increase significantly
particularly in light of the New York SIP approved emission limits and
New Source Review provisions.
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\20\ DVs for the Saint Regis Mohawk Tribe of New York are not
shown in Table 1 since EPA determined there is no valid data.
Wherever there is no data shown in Table 1, EPA has no data for
those time periods.
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EPA's analysis of the air quality monitoring data and emission
trends also supports EPA's conclusion that NO2 emissions are
not increasing significantly in the states surrounding New York and do
not appear likely to significantly increase as a result of emissions
from New York especially with the New York SIP approved provisions for
NOX. EPA therefore does
[[Page 25073]]
not expect monitors identified in the table above which all have DVs
well below the NO2 NAAQS to have difficulty maintaining the
NAAQS for NO2. EPA proposes to conclude that New York
emission sources are not significantly contributing to nonattainment in
another state for the NO2 NAAQS and are not likely to
interfere with maintenance of the NO2 NAAQS in another
state.
Because the 2008-2010, the 2009-2011 and also the 2010-2012
quality-assured and certified air quality monitoring data identified
above for areas surrounding or bordering New York State within 50
kilometers of New York are well below the NO2 NAAQS and
because NOX emission trends from New York sources do not
appear to be increasing, EPA proposes to find that New York's federally
enforceable SIP provisions with NOX emission limits for
NOX emission sources contain adequate provisions to ensure
New York emission sources will not interfere with maintenance or
contribute significantly to nonattainment in another state with respect
to the NO2 NAAQS.
Based upon EPA's review of the air quality data and the State's
submittal, EPA is proposing to determine that the State has met its
obligations pursuant to 110(a)(2)(D)(i)(I) with respect to the 2010
NO2 NAAQS.
Element G: Emergency power: Section 110(a)(2)(G) requires states to
provide for authority to address activities causing imminent and
substantial endangerment to public health, including contingency plans
to implement the emergency episode provisions in their SIPs.
EPA requires that Infrastructure SIP submittals should meet the
applicable contingency plan requirements of 40 CFR part 51, subpart H
(40 CFR 51.150 through 51.153) (``Prevention of Air Pollution Emergency
Episodes''). Subpart H requires states that have air quality control
regions identified as either Priority I, Priority IA or Priority II to
develop emergency episode contingency plans. States are required to
develop emergency episode plans for any area that has monitored and
recorded annual arithmetic mean NO2 levels greater than 100
[micro]g/m\3\ (0.06 ppm (60 ppb)).\21\ Areas which do not meet this
level are considered to be Priority III. 40 CFR 51.150(f). In
accordance with the guidance, Priority III regions are not required to
develop emergency episode plans which EPA interprets to mean the
contingency plans otherwise required under section 51.152. 40 CFR
51.152(c).
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\21\ Section 51.150, Classification of regions for episode
plans, was last amended on July 20, 1993 (58 FR 38822) and therefore
does not include ambient concentration levels for establishing
Priority I Regions for the 1-hour NO2 NAAQS that was
promulgated on February 9, 2010 (75 FR 6474).
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Since 2010, air-quality monitors in New York State show that annual
arithmetic mean NO2 levels have been below the 100 [micro]g/
m\3\ (0.06 ppm (60 ppb)) threshold. In addition, since 2010, ambient
air quality levels in New York State have been below the 1-hour
NO2 NAAQS of 100 ppb. Based on certified and quality assured
air quality data, New York should be classified as a Priority III
region and, therefore, emergency episode plans for NO2 are
not required.
However, in general and for the NO2 standard, the
section 110(a)(2)(G) requirements are addressed by New York's ECL,
Articles 3 and 19, which are implemented through 6 NYCRR Part 207,
``Control Measures for Air Pollution Episodes.'' Among other things, 6
NYCRR Part 207 requires persons who own a significant air contamination
source to submit a proposed episode action plan to the NYSDEC
Commissioner, and enable the Commissioner to designate air pollution
episodes which trigger the action plans. Pursuant to Part 207.3(a), the
NYSDEC Commissioner shall have on file and make available the criteria
used in determining the need to designate episodes. The NYSDEC
maintains an ``Episode Action Plan'' with guidelines and protocols/
criteria to be followed in case of an air pollution emergency. The
NYSDEC's Episode Action Plan has been updated to reflect the
Significant Harm Levels (SHLs) that address the 1-hour NO2
NAAQS proposed by EPA on July 15, 2009. Therefore, EPA proposes that
New York has met the requirements of section 110(a)(2)(G) for the 2010
1-hour NO2 NAAQS.
VII. What action is EPA taking?
EPA is proposing to approve New York's submittal as fully meeting
the infrastructure requirements for the 2010 primary NO2
NAAQS for all section 110(a)(2) elements and sub-elements, as follows:
(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M).
EPA is not acting on New York's submittal as it relates to
nonattainment provisions, the NSR program required by part D in section
110(a)(2)(C) and the measures for attainment required by section
110(a)(2)(I), as part of the infrastructure SIPs because the State's
infrastructure SIP submittal does not include nonattainment
requirements and EPA will act on them when, if necessary, they are
submitted.
EPA is soliciting public comments on the issues discussed in this
proposal. These comments will be considered before EPA takes final
action. Interested parties may participate in the Federal rulemaking
procedure by submitting written comments to the EPA Regional Office
listed in the ADDRESSES section of this Federal Register, or by
submitting comments electronically, by mail, or through hand delivery
or courier following the directions in the ADDRESSES section of this
Federal Register.
VIII. 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 action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
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 (Public Law 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
[[Page 25074]]
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 (65 FR 67249, November 9, 2000),
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 preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 21, 2014.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2014-09982 Filed 5-1-14; 8:45 am]
BILLING CODE 6560-50-P
