Approval of Air Quality Implementation Plans; New York; Infrastructure Requirements for the 2008 Ozone, 2010 Sulfur Dioxide, and 2012 Fine Particulate Matter National Ambient Air Quality Standards, 54502-54507 [2019-21955]
Download as PDF
<![CDATA[
54502
Federal Register / Vol. 84, No. 197 / Thursday, October 10, 2019 / Rules and Regulations
action must be filed in the United States
Court of Appeals for the appropriate
circuit by December 9, 2019. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
reference, Intergovernmental relations,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides.
Dated: September 25, 2019.
Mary S. Walker,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
§ 52.2120
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
State
effective
date
*
*
6/25/2018
EPA approval date
Explanation
10/10/2019, [insert Federal
Register citation].
Addressing Prongs 1 and 2 of section
110(a)(2)(D)(i) only.
Environmental Protection Agency, 290
Broadway, 25th Floor, New York, New
York 10007–1866, (212) 637–3764, or by
email at Linky.Edward@epa.gov.
SUPPLEMENTARY INFORMATION:
[FR Doc. 2019–21956 Filed 10–9–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2018–0511; FRL–10000–
78–Region 2]
Approval of Air Quality Implementation
Plans; New York; Infrastructure
Requirements for the 2008 Ozone, 2010
Sulfur Dioxide, and 2012 Fine
Particulate Matter National Ambient Air
Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
I. What action is EPA taking?
II. What is the background information?
III. What is a section 110(a)(1) and (2) SIP?
IV. What elements are required under section
110(a)(1) and (2)?
V. What is EPA’s approach to the review of
infrastructure SIP submissions?
VI. What did New York submit?
VII. How has the State addressed the
elements of the section 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
VIII. What comments did EPA receive in
response to the proposed action?
IX. What is EPA approving?
X. Statutory and Executive Order Reviews
I. What action is EPA taking?
The Environmental Protection
Agency (EPA) is approving certain
elements of New York’s State
Implementation Plan (SIP) revisions,
submitted to demonstrate that the State
meets the requirements of the Clean Air
Act (CAA) for the 2008 Ozone; 2010
Sulfur Dioxide; and 2012 particulate
matter of 2.5 microns or less (PM2.5)
National Ambient Air Quality Standards
(NAAQS). Section 110(a) of the CAA
requires that each state adopt and
submit for approval into the SIP a plan
for the implementation, maintenance
and enforcement of each NAAQS
promulgated by the EPA.
DATES: This final rule is effective on
November 12, 2019.
FOR FURTHER INFORMATION CONTACT:
Edward J. Linky, Air Programs Branch,
Jkt 250001
Identification of plan.
*
*
(e) * * *
Authority: 42 U.S.C. 7401 et seq.
110(a)(1) and (2) Infrastructure Requirements for the
2010 1-hour SO2 NAAQS.
16:03 Oct 09, 2019
*
1. The authority citation for part 52
continues to read as follows:
Provision
VerDate Sep<11>2014
2. In § 52.2120, the table in paragraph
(e) is amended by adding the entry
‘‘110(a)(1) and (2) Infrastructure
Requirements for the 2010 1-hour SO2
NAAQS’’ at the end of the table to read
as follows:
■
■
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
SUMMARY:
Subpart PP–South Carolina
The EPA is approving certain
elements of the State of New York
Infrastructure State Implementation
Plan (SIP) as meeting the section 110(a)
infrastructure requirements of the Clean
Air Act (CAA) for the following
National Ambient Air Quality Standards
(NAAQS or standard): 2008 Ozone, 2010
sulfur dioxide (SO2), and 2012
particulate matter of 2.5 microns or less
(PM2.5). As explained below, the EPA
has determined that the State has the
necessary infrastructure, resources, and
general authority to implement the
standards noted above.
II. What is the background
information?
Section 110(a)(1) of the CAA requires
states to submit for approval into the
SIP a plan that provides for the
PO 00000
Frm 00038
Fmt 4700
Sfmt 4700
implementation, maintenance, and
enforcement of new or revised NAAQS
within three years following the
promulgation of such NAAQS. The EPA
commonly refers to such state plans as
‘‘infrastructure SIPs.’’
• On March 12, 2008, the EPA
promulgated a revised NAAQS for
ozone. 73 FR 16436 (March 27, 2008).
• On June 2, 2010), the EPA
promulgated a revised primary NAAQS
for SO2. 75 FR 35520 (June 22, 2010).
• On December 14, 2012, the EPA
promulgated a revised primary NAAQS
for PM2.5 for the annual standard. 78 FR
3086 (Jan. 15, 2013).
The New York State Department of
Environmental Conservation (NYSDEC)
submitted the following revisions to its
Infrastructure State Implementation
Plan (ISIP):
• 2008 Ozone ISIP submitted on April
4, 2013
• 2010 SO2 ISIP submitted on October
3, 2013
• 2012 PM2.5 ISIP submitted on
November 30, 2016
On August 26, 2016 (81 FR 58849),
the EPA published its action on certain
elements of NYSDEC’s April 4, 2013 SIP
submittal pertaining to the 2008 Ozone
ISIP. The EPA’s action addressed CAA
section 110(a)(2)(D)(i)(I) which requires
SIPs to include provisions prohibiting
any source or other type of emissions
activity in one state from contributing
significantly to nonattainment of the
NAAQS (commonly referred to as prong
1), or interfering with maintenance of
the NAAQS (prong 2), in any other state
and CAA section 110(a)(2)(D)(i)(II)
which requires SIPs to include
E:\FR\FM\10OCR1.SGM
10OCR1
Federal Register / Vol. 84, No. 197 / Thursday, October 10, 2019 / Rules and Regulations
provisions prohibiting any source or
other type of emissions activity in one
state from interfering with measures
required to protect visibility (prong 4).
The EPA disapproved 110(a)(2)(D)(i)(I)
(prongs 1 and 2) and approved
110(a)(2)(D)(i)(II) (prong 4) for the 2008
Ozone NAAQS. 81 FR 58849, 58855
(August 26, 2016).
The EPA approved portions of New
York’s infrastructure SIP submittals for
the 2008 Ozone and 2010 SO2 NAAQS 1
pertaining to CAA sections 110(a)(2)(C),
(D)(i)(II) (prong 3), and (J), including
PSD interstate transport provisions.2 81
FR 95047 (December 27, 2016).
III. What is a section 110(a)(1) and (2)
SIP?
Section 110(a)(1) provides the
procedural and timing requirements for
SIPs. Section 110(a)(2) lists specific
elements that states must meet for
‘‘infrastructure’’ 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 the
EPA plans to implement, maintain and
enforce each of the NAAQS
promulgated by the EPA. The EPA
interprets this provision to require states
to address basic SIP requirements
including emission inventories,
monitoring, and modeling to assure
attainment and maintenance of the
standards. By statute, SIPs meeting the
requirements of section 110(a)(1) and (2)
are to be submitted by states within
three years after promulgation of a new
or revised standard.
IV. What elements are required under
section 110(a)(1) and (2)?
The infrastructure requirements of
CAA sections 110(a)(1) and (2), relevant
to this action, are discussed in the
following EPA guidance documents:
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;’’ September 25, 2009,
memorandum entitled ‘‘Guidance on
SIP Elements Required Under Section
110(a)(1) and (2) for the 2006 24-Hour
1 The approval also included the 2008 Lead
NAAQS, which is not a subject of this action.
2 CAA 110(a)(2)(C) (requires SIPs to include a
program to provide for enforcement of emission
limitations and other control measures described in
CAA 110(a)(2)(A)); CAA 110(a)(2)(D)(i)(II)(which
requires SIPs to include provisions prohibiting any
source or other type of emissions activity in one
state from interfering with measures required to
prevent significant deterioration of air quality in
another state); CAA 110(a)(2)(J)(requirements
related to consultation, public notification and PSD
and visibility protection).
VerDate Sep<11>2014
16:03 Oct 09, 2019
Jkt 250001
Fine Particle (PM2.5) National Ambient
Air Quality Standards;’’ September 13,
2013, memorandum entitled ‘‘Guidance
on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and 110(a)(2)’’ (‘‘2013
Guidance’’); 3 and March 17, 2016,
‘‘Information on Interstate Transport
‘‘Good Neighbor’’ provision for the 2012
Fine Particulate Matter (PM) National
Ambient Air Quality Standards under
Clean Air Act (CAA) Section
110(a)(2)(D)(i)(I).’’
The EPA reviews each infrastructure
SIP submission with the applicable
statutory provisions of CAA 110(a)(2).
The 14 elements required to be
addressed by CAA section 110(a)(2) are:
• 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 and for
construction or modification of
stationary sources;
• 110(a)(2)(D)(i)(I) and (II): Interstate
pollution transport;
• 110(a)(2)(D)(ii): Interstate and
international pollution abatement;
• 110(a)(2)(E): Adequate resources
and authority, conflict of interest,
oversight of local governments and local
authorities;
• 110(a)(2)(F): Stationary source
monitoring and reporting;
• 110(a)(2)(G): Emergency powers;
• 110(a)(2)(H): Future SIP revisions;
• 110(a)(2)(I): Plan revisions for
nonattainment areas (under part D);
• 110(a)(2)(J): Consultation with
government officials, public
notification, and PSD and visibility
protection;
• 110(a)(2)(K): Air quality modeling
and data;
• 110(a)(2)(L): Permitting fees;
• 110(a)(2)(M): 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 of the CAA. See 77 FR
46354 (August 3, 2012) and 77 FR 60308
(October 3, 2012, footnote 1). These
requirements are: (1) Submissions
required by section 110(a)(2)(C) to the
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.
PO 00000
Frm 00039
Fmt 4700
Sfmt 4700
54503
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 permit
program requirements of section
110(a)(2)(C) for 2012 PM2.5 or the
nonattainment planning requirements
related to section 110(a)(2)(I) for the
2008 Ozone, 2010 SO2, or 2012 PM2.5.
This action partially addresses
Element D (interstate pollution
transport, interstate and international
pollution abatement). As mentioned in
section II, the EPA previously
disapproved 110(a)(2)(D)(i)(I) (prongs 1
and 2) and approved 110(a)(2)(D)(i)(II)
(prong 4) for the 2008 Ozone NAAQS.
81 FR 58849 (Aug. 26, 2016). The EPA
approved 110(a)(2)(D)(i)(II) (prong 3) for
the 2008 Ozone and 2010 SO2 NAAQS.
81 FR 95047 (December 27, 2016). This
action addresses the remaining element
D provisions for 2008 Ozone, 2010 SO2
and 2012 PM2.5 NAAQS, except for
110(a)(2)(D)(i)(I) (prongs 1 and 2)
provisions for the 2010 SO2 NAAQS and
the 2012 PM2.5 NAAQS, which will be
addressed in a subsequent action by the
EPA. Therefore, with respect to element
D, this action addresses:
• 110(a)(2)(D)(i)(II) (prong 3) for the
2012 PM2.5 NAAQS;
• 110(a)(2)(D)(i)(II) (prong 4) for the
2010 SO2 NAAQS and 2012 PM2.5
NAAQS; and
• 110(a)(2)(D)(ii) for 2008 Ozone
NAAQS, 2010 SO2 NAAQS and 2012
PM2.5 NAAQS.
V. What is EPA’s approach to the
review of infrastructure SIP
submissions?
The discussion of the EPA’s approach
to the review of infrastructure SIP
submissions is detailed in the
‘‘Technical Support Document for the
EPA’s proposed Rulemaking for the
New York State Implementation Plan
Revision for Meeting the Infrastructure
Requirements in the Clean Air Act’’
dated 2019 (TSD). The TSD is available
in the electronic docket (EPA–R02–
OAR–2018–0511) at
www.regulations.gov. For additional
information, the reader is also referred
to EPA’s Proposed Rule. 84 FR 27559
(June 13, 2019).
Whenever the EPA promulgates a new
or revised NAAQS, CAA section
110(a)(1) requires states to make
Infrastructure SIP submissions to
provide for the implementation,
maintenance, and enforcement of the
NAAQS. These submissions must meet
the various requirements of CAA section
E:\FR\FM\10OCR1.SGM
10OCR1
54504
Federal Register / Vol. 84, No. 197 / Thursday, October 10, 2019 / Rules and Regulations
110(a)(2), as applicable. Due to
ambiguity in some of the language of
CAA section 110(a)(2), the EPA believes
that it is appropriate to interpret these
provisions in the specific context of
acting on infrastructure SIP
submissions. The EPA has previously
provided comprehensive guidance on
the application of these provisions
through a guidance document for
infrastructure SIP submissions and
through regional actions on
infrastructure submissions.4 Unless
otherwise noted below, we are following
that existing approach in acting on these
submissions. In addition, in the context
of acting on such infrastructure
submissions, the EPA evaluates the
submitting state’s SIP for facial
compliance with statutory and
regulatory requirements, not for the
state’s implementation of its SIP.5 The
EPA has other explicit Clean Air Act
authority to address issues concerning a
state’s implementation of its SIP.
VI. What did New York submit?
NYSDEC submitted the following SIP
submittals which address the
infrastructure requirements for the
identified NAAQS:
• 2008 Ozone ISIP submitted on April
4, 2013
• 2010 SO2 ISIP submitted on October
3, 2013
• 2012 PM2.5 ISIP submitted on
November 30, 2016
New York’s section 110 submittals
demonstrate how the State, where
applicable, has a plan in place that
meets the requirements of section 110
for the 2008 Ozone, 2010 SO2, and 2012
PM2.5 NAAQS. The plans reference the
current New York Air Quality SIP, the
New York Codes, 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 the 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/sips-ny.
4 EPA explains and elaborates on these
ambiguities and its approach to address them in its
September 13, 2013 Infrastructure SIP Guidance
(available at https://www3.epa.gov/airquality/
urbanair/sipstatus/docs/Guidance_on_
Infrastructure_SIP_Elements_Multipollutant_
FINAL_Sept_2013.pdf), as well as in numerous
agency actions, including EPA’s prior action on
New York’s infrastructure SIP to address the
Nitrogen Dioxide NAAQS, 85 FR 25066, 25067
(May 2, 2014).
5 See U.S. Court of Appeals for the Ninth Circuit
decision in Montana Environmental Information
Center v. Thomas, 902 F.3d 971 (Aug. 30, 2018).
VerDate Sep<11>2014
16:03 Oct 09, 2019
Jkt 250001
VII. How has the State addressed the
elements of the section 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
The EPA has determined that New
York has the necessary infrastructure,
resources, and general authority to
address certain elements of the section
110(a)(1) and (2) infrastructure
provisions for the 2008 Ozone, 2010
SO2, and 2012 PM2.5 NAAQS. In
summary, the EPA is approving the
following elements and sub-elements of
New York’s Infrastructure SIP submittal
for 2008 Ozone, 2010 SO2, and 2012
PM2.5 NAAQS (except as indicated):
110(a)(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] for the 2012 PM2.5
NAAQS only; 110(a)(2)(D)(i)(II)
[interstate transport], Prong 3 for 2012
PM2.5 NAAQS, and Prong 4 for the 2010
SO2 NAAQS and the 2012 PM2.5
NAAQS; 110(a)(2)(D)(ii) [interstate and
international pollution abatement];
110(a)(2)(E)[adequate resources, state
boards/conflict of interest, oversight of
local governments and local
authorities];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,
and PSD for the 2012 PM2.5 NAAQS
only]; 110(a)(2)(K) [air quality and
modeling/data]; 110(a)(2)(L) [permitting
fees]; and 110(a)(2)(M) [consultation/
participation by affected local entities].
The EPA is not acting on New York’s
submittal for 2012 PM2.5 as it relates to
nonattainment provisions, including the
nonattainment NSR program required
by part D in section 110(a)(2)(C) and is
not acting on New York’s submittals for
2008 Ozone, 2010 SO2 and 2012 PM2.5
as they relate to the measures for
nonattainment required by part D in
section 110(a)(2)(I), because the State’s
Infrastructure SIP submittals do not
include nonattainment requirements
related to these 2 elements. The EPA is
also not acting on the visibility
protection portion of element J for the
2012 PM2.5 submittal.
VIII. What comments did EPA receive
in response to the proposed action?
On June 13, 2019 (84 FR 27559), EPA
proposed to approve certain elements of
New York’s ISIP revisions, submitted to
demonstrate that the State meets the
requirements of the CAA for the 2008
Ozone; 2010 SO2 and 2012 PM2.5
NAAQS. EPA received an erroneously
filed comment from one commenter and
an adverse comment from an
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
anonymous commenter, in response to
the June 13, 2019 proposed action.
Comment: A comment was submitted
on EPA’s proposed rule to deny New
York’s 126 petition submitted by
Louisville Gas and Electric and
Kentucky Utilities Companies.
EPA Response: These comments were
submitted to the Docket for this action
but are not applicable to this action and
are filed in error. The comments will be
addressed separately in the EPA’s
Response to Comments on the Proposed
Action on Section 126(b) Petition from
New York (Docket ID No. EPA–HQ–
OAR–2018–0170).
Comment: EPA must provide a
complete record that New York has
adequate resources and personnel to
implement the SIP. EPA must audit
NYSDEC to ensure proper funding and
personnel to implement the SIP.
EPA response: EPA disagrees with
this comment. An audit of NYSDEC is
not required. CAA Section
110(a)(2)(E)(i) (Element E) requires that
the State provide ‘‘necessary
assurances’’ that it will have adequate
funding and personnel to implement the
relevant NAAQS. As stated in the
proposal, in the context of acting on
infrastructure submissions, EPA
evaluates the submitting state’s SIP for
facial compliance with statutory and
regulatory requirements, not for the
state’s implementation of its SIP.6 The
EPA has other authority to address any
issues concerning a state’s
implementation of the rules,
regulations, consent orders, etc. that
comprise its SIP.
The requirements of Element E, that
the State have adequate resources and
personnel, are clearly demonstrated in
New York’s three ISIP submittals dated
April 4, 2013 (for the 2008 ozone ISIP),
October 3, 2013 (for the 2010 SO2 ISIP),
and November 30, 2016 (for the 2012
PM2.5 ISIP), as detailed by the EPA in its
technical support document (TSD) at
pages 11–12, included in this docket.
The submittals indicated that NYSDEC’s
Division of Air Resources (DAR) has
over 200 full-time positions and
receives both operating and capital
funding. As New York’s submittals
indicates, operating funds are allocated
to DAR annually and are used for daily
administrative expenses. These
expenses include salaries, fringe benefit,
and indirect and non-personnel services
such as travel, supply and equipment
costs. Indirect costs are, in turn,
allocated to other Departments or
6 See U.S. Court of Appeals for the Ninth Circuit
decision in Montana Environmental Information
Center v. EPA, 902 F.3d 971 (August 30, 2018. Also
see proposed rulemaking in this action 84 FR
27559, 27561 (June 13, 2019).
E:\FR\FM\10OCR1.SGM
10OCR1
Federal Register / Vol. 84, No. 197 / Thursday, October 10, 2019 / Rules and Regulations
divisions that support DAR activities.
DAR is allocated operating funds from
five sources: General Fund, Utility
Environmental Regulatory Account, Cooperative Agreements (i.e., EPA section
103 and 105 grants) and the Clean Air
Fund, which is comprised of the Title
V and Mobile Source accounts.
Capital funds are allocated to the DAR
at the discretion of the New York State
legislature and are used for the
financing or acquisition of capital
facilities such as the construction of an
air monitoring site. DAR is allocated
Capital funds from three sources:
General Fund, Mobile Source Account
and Rehabilitation and Improvement.’’ 7
Therefore, the EPA has determined
that the NYSDEC has provided
necessary assurances that it has
sufficient funding and personnel to
meet the requirements of section
110(a)(2)(E)(i) for the 2008 ozone, 2010
SO2 and 2012 PM2.5 NAAQS.
Comment: New York does not have
adequate resources to implement a
Regional Haze Program and EPA must
impose a FIP on New York for two
sources which commenter does not
identify.
EPA Response: EPA disagrees that
New York lacks adequate resources to
implement a Regional Haze Program. As
noted above, Element E, specifically
CAA Section 100(a)(2)(E)(i), does not
require an audit of resources and
personnel. New York’s Regional Haze
plan was approved into the SIP for 18
facilities. 77 FR 51915 (Aug. 28, 2012).
Only two facilities, Danskammer
Generating Station and Roseton
Generating Station, were subject to the
Federal Implementation Plan (FIP).
Specifically, New York’s SO2, NOX and
PM Best Available Retrofit Technology
(BART) determinations and emissions
limits for Danskammer Generating
Station, Unit 4, and New York’s SO2
BART determinations and emissions
limit for Roseton Generating Station,
Units 1 and 2, were subject to the FIP.
EPA’s FIP determination did not cite
resources or personnel as a basis for the
FIP, rather, the State had provided a
regional haze SIP with supporting
analysis, but EPA disagreed with the
specific BART determinations with
regard to specific pollutants at specific
units at these facilities that the State had
submitted. 77 FR 51915 (Aug. 28, 2012).
Moreover, for each of the sources, the
EPA subsequently approved a sourcespecific SIP revision and withdrew the
FIP. 82 FR 57126 (Dec. 4, 2017)
(approving the SIP for Danskammer
Generating Station, Unit 4) and 83 FR
7 See submission of NY SIP for interstate
transport of PM2.5.
VerDate Sep<11>2014
16:03 Oct 09, 2019
Jkt 250001
6970 (Feb. 16, 2018) (approving the SIP
for Roseton Generating Station, Units 1
and 2).
Comment: Elements, F, H, K, L and M:
EPA does not provide any rationale for
approving these elements other than to
refer the reader to previous actions. EPA
must review each submission on its own
merits.
EPA Response: EPA reviewed and
evaluated each submittal addressed in
this action. As explained in the proposal
(84 FR 27559) and the accompanying
TSD for this rulemaking, and consistent
with EPA’s ISIP guidance, certain
elements of the Infrastructure SIP
submittals are not pollutant specific.
EPA proposed to find that, for certain
elements, including Elements F, H, K, L
and M, the information provided in
these submittals is consistent with or
identical to prior submittals that
addressed these specific elements. As
explained in the proposal, EPA’s prior
actions on ISIPs included a full
evaluation of the information provided
by the State for each element, found the
New York SIP submittal was sufficient,
and approved it. New York, in each of
its submittals in this action, has
affirmed that the existing SIP meets the
requirements of CAA sections 110(a)(1)
and (2). The EPA is not aware of, and
the commenter has not identified,
anything about the 2008 ozone, 2010
SO2, or 2012 PM2.5 NAAQS that would
cause New York’s SIP for these elements
to be insufficient. In addition, New
York’s submissions for the 2008 ozone,
2010 SO2, or 2012 PM2.5 NAAQS
identify the basis for approving
Elements F, H, K, L and M, and that is
detailed in the TSD for this action at
pages 12–14 for Element F, page 15–16
for Element H, page 20–21 for Element
K, page 21 for Element L and pages 21–
22 for Element M. Accordingly,
approval of the pending submittal for
these elements is appropriate.
Comment: For Element H, the EPA
must disapprove this element until the
EPA establishes a SHL for the PM2.5
NAAQS. In establishing the PM2.5
NAAQS under the 1997 standard the
EPA stated that no SHL was able to be
established so a placeholder value was
being imposed at 500.
EPA Response: Element H concerns
future SIP revisions and does not relate
to establishment of a significant harm
level (SHL). The issue of establishment
of an SHL relates to Element G
(Emergency Powers). In promulgating
the 2012 PM2.5 NAAQS, EPA retained
the pre-existing level of 500 micrograms
per cubic meter (ug/m3), 24-hour
average, for the Air Quality Index (AQI)
value of 500 and did not establish a
significant harm (SHL) for PM2.5. In the
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
54505
absence of a SHL, EPA maintains that
the central components of a contingency
plan would be to reduce emissions for
the PM2.5 sources at issue and to provide
public communication as needed. See
2013 Guidance at pages 47–49.
NYSDEC’s November 2016 ISIP
submittal addressing the Element G
requirements for the 2012 PM2.5 NAAQS
meets the requirements of the EPA’s
2013 guidance and, as explained in
detail in the EPA’s TSD for this ISIP
submittal, is acceptable to the EPA.
Comment: The comment asserts that
the EPA must review Element L with
respect to permitting fees and reveal any
defects at this time. The EPA cannot
point to a previous approval of a similar
or nearly similar submittal. EPA must
audit the state’s title V fee collection
system to affirmatively prove that
adequate fees are being collected in
order to implement the title V program.
The EPA cannot rely on a state claim
without affirmatively confirming it.
EPA response: CAA 110(a)(2)(L) sets
forth specific requirements that are in
effect ‘‘until such fee requirement is
superseded with respect to such sources
by the Administrator’s approval of a fee
program under subchapter V [title V].’’
The Administrator previously approved
New York’s title V operating program.
EPA granted interim approval to the
Title V operating permit program
submitted by the State of New York
effective December 9, 1996. 61 FR 57589
(November 7, 1996). The final interim
approval at 61 FR 57590, determines
that ‘‘the State has the authority to
collect sufficient fees to implement its
title V program’’ and, at 61 FR 57592,
allows the State to ‘‘issue operating
permits pursuant to Title V of the Act
to all major stationary sources.’’ See also
61 FR 63928 (Dec. 2, 1996) (correction);
40 CFR part 70, Appendix A. EPA
subsequently granted full approval to
New York’s program, effective
November 30, 2001. 66 FR 63180
(December 5, 2011). In so doing, the
Administrator found that the fee
program was sufficient to cover all CAA
permitting, implementation, and
enforcement for new and modified
major sources as well as existing major
sources, which is consistent with the
requirements of CAA 110(a)(2)(L).
Statutory and regulatory citations
related to the fee aspects of New York’s
title V operating program are found in
the TSD at p. 21. Accordingly, and
consistent with EPA’s ISIP guidance,
reliance on the existing, EPA-approved
title V fee program is sufficient to
approve this element and an additional
examination of that approved program
is not necessary.
E:\FR\FM\10OCR1.SGM
10OCR1
54506
Federal Register / Vol. 84, No. 197 / Thursday, October 10, 2019 / Rules and Regulations
IX. What is EPA approving?
The EPA is approving New York’s
submittals as meeting the infrastructure
requirements for the 2008 Ozone, 2010
SO2 and 2012 PM2.5 NAAQS for all
section 110(a)(2) elements and subelements, as follows: (A), (B), (C)
[enforcement measures and PSD
program for major sources for 2012
PM2.5 only], (D)(i)(II) prong 3 [for 2012
PM2.5 only], (D)(i)(II) prong 4 [for 2010
SO2 and 2012 PM2.5 only], D(ii), (E), (F),
(G), (H), (J) [for consultation, public
notification and prevention of
significant deterioration 2012 PM2.5
only], (K), (L) and (M).
The EPA is not acting on New York’s
submittal for 2012 PM2.5 as it relates to
nonattainment provisions, the NSR
program required by part D, in section
110(a)(2)(C) and is not acting on New
York’s submittals for 2008 Ozone, 2010
SO2 and 2012 PM2.5 NAAQS as they
relate to the measures for attainment
required by section 110(a)(2)(I), as part
of this proposed approval because the
State’s infrastructure SIP submittals do
not include nonattainment requirements
and the EPA will act on them when, if
necessary, they are submitted.
The EPA is also not acting on
110(a)(2)(D)(i)(I) provisions (prongs 1
and 2) for the 2010 SO2 NAAQS and the
2012 PM2.5 NAAQS, which will be
addressed in a subsequent action by the
EPA.
X. 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, the 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) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
This rulemaking pertaining to New
York’s section 110(a)(2) infrastructure
requirements for the 2008 Ozone
NAAQS, 2012 PM2.5 NAAQS, and 2010
SO2 NAAQS 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 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, Incorporation by
reference, Intergovernmental relations,
Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq. Subpart
HH New York.
Dated: September 23, 2019.
Peter D. Lopez,
Regional Administrator, Region 2.
Part 52 chapter I, title 40 of the Code
of Federal Regulations is amended as
follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart HH—New York
2. In § 52.1670, the table in paragraph
(e) is amended by adding entries for
‘‘Section 110(a)(2) Infrastructure
Requirements for the 2008 Ozone
NAAQS’’, ‘‘Section 110(a)(2)
Infrastructure Requirements for the 2010
SO2 NAAQS’’, and ‘‘Section 110(a)(2)
Infrastructure Requirements for the 2012
PM2.5 NAAQS’’ at the end of the table
to read as follows.
■
§ 52.1670
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED NEW YORK NON-REGULATORY AND QUASI-REGULATORY PROVISIONS
Action/SIP element
Applicable
geographic or
nonattainment
area
*
*
Section 110(a)(2) InfrastrucStatewide
ture Requirements for the
2008 Ozone NAAQS.
Section 110(a)(2) InfrastrucStatewide
ture Requirements for the
2010 SO2 NAAQS.
VerDate Sep<11>2014
19:17 Oct 09, 2019
Jkt 250001
New York
submittal
date
*
4/4/2013
10/3/2013
PO 00000
Frm 00042
EPA approval date
Explanation
*
10/10/2019, [insert
Federal Register
citation].
10/10/2019, [insert
Federal Register
citation].
*
*
*
This action addresses the following CAA elements:
110(a)(2)(A), (B), (D)(ii), (E), (F), (G), (H), (K), (L) and
(M).
This action addresses the following CAA elements:
110(a)(2)(A), (B), (D)(i)(II) prong 4, (D)(ii), (E), (F), (G),
(H), (K), (L) and (M).
Fmt 4700
Sfmt 4700
E:\FR\FM\10OCR1.SGM
10OCR1
Federal Register / Vol. 84, No. 197 / Thursday, October 10, 2019 / Rules and Regulations
54507
EPA-APPROVED NEW YORK NON-REGULATORY AND QUASI-REGULATORY PROVISIONS—Continued
Action/SIP element
Section 110(a)(2) Infrastructure Requirements for the
2012 PM2.5 NAAQS.
Applicable
geographic or
nonattainment
area
Statewide
New York
submittal
date
11/30/2016
EPA approval date
Explanation
10/10/2019, [insert
Federal Register
citation].
This action addresses the following CAA elements:
110(a)(2)(A), (B), (C) [enforcement measures and PSD
program for major sources], (D)(i)(II) prong 3, (D)(ii), (E),
(F), (G), (H), (J) [for consultation, public notification and
prevention of significant deterioration] (K), (L) and (M).
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
ENVIRONMENTAL PROTECTION
www.regulations.gov, or please contact
AGENCY
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
40 CFR Part 52
additional availability information.
FOR FURTHER INFORMATION CONTACT:
[EPA–R03–OAR–2019–0184; FRL–10000–
Gregory A. Becoat, Planning &
90–Region 3]
Implementation Branch (3AD30), Air &
Approval and Promulgation of Air
Radiation Division, U.S. Environmental
Quality Implementation Plans; District
Protection Agency, Region III, 1650
of Columbia; Reasonably Available
Arch Street, Philadelphia, Pennsylvania
Control Technology State
19103. The telephone number is (215)
Implementation Plan for Volatile
814–2036. Mr. Becoat can also be
Organic Compounds Under the 2008
reached via electronic mail at
Ozone National Ambient Air Quality
becoat.gregory@epa.gov.
Standard
SUPPLEMENTARY INFORMATION: On August
29, 2018, the District of Columbia
AGENCY: Environmental Protection
Department of Energy and Environment
Agency (EPA).
(DOEE) submitted a SIP revision to
ACTION: Final rule.
address all the RACT requirements for
SUMMARY: The Environmental Protection VOCs set forth by the CAA under the
Agency (EPA) is approving a revision to 2008 8-hour ozone NAAQS (the 2018
RACT Submission). The District’s RACT
the District of Columbia’s (the District)
submittal for the 2008 ozone NAAQS
state implementation plan (SIP)
includes: (1) Certification that for
submitted on August 29, 2018. The
certain major sources, previously
District’s SIP revision satisfies the
adopted VOC RACT controls in the
volatile organic compound (VOC)
reasonably available control technology District’s SIP that were approved by
EPA under the 1979 1-hour and 1997 8(RACT) requirements under the 2008 8hour ozone national ambient air quality hour ozone NAAQS are based on the
currently available technically and
standard (NAAQS). The District will
economically feasible controls, and
address RACT for nitrogen oxides (NOX)
continue to represent RACT for
in a separate SIP submission. This
implementation of the 2008 8-hour
action is being taken under the Clean
ozone NAAQS; (2) a listing of the
Air Act (CAA).
Control Techniques Guidelines (CTGs)
DATES: This final rule is effective on
already adopted into the District’s SIP,
November 12, 2019.
and (3) a listing of those categories of
ADDRESSES: EPA has established a
sources subject to CTGs which do not
docket for this action under Docket ID
exist in the District and the location of
Number EPA–R03–OAR–2019–0184. All prior negative declarations previously
documents in the docket are listed on
submitted and approved by EPA. The
the https://www.regulations.gov
District’s SIP submittal also includes an
website. Although listed in the index,
update to the 2002 Mobile Equipment
some information is not publicly
Repair and Refinishing (MERR) rule to
available, e.g., confidential business
incorporate the Ozone Transport
information (CBI) or other information
Commission’s (OTC) 2009 Motor
whose disclosure is restricted by statute. Vehicle and Mobile Equipment NonCertain other material, such as
Assembly Line Coating Operations
copyrighted material, is not placed on
regulations (MVMERR) rule adopted by
[FR Doc. 2019–21955 Filed 10–9–19; 8:45 am]
BILLING CODE 6560–50–P
VerDate Sep<11>2014
19:17 Oct 09, 2019
Jkt 250001
PO 00000
Frm 00043
Fmt 4700
Sfmt 4700
the District in 2016. EPA addressed the
2009 MVMERR rule in a separate
rulemaking action as it is not related to
the 2008 VOC RACT SIP revision and
does not impact EPA’s approval. The
DOEE also submitted as an amendment
to the SIP-approved 2002 MERR rule the
updated 2009 MVMERR rule. As
previously mentioned, the 2009
MVMERR rule was addressed in a
separate rulemaking action.
I. Background
A. General
Ozone is formed in the atmosphere by
photochemical reactions between VOCs
and NOX in the presence of sunlight. In
order to reduce these ozone
concentrations, the CAA requires
control of VOC and NOX emission
sources to achieve emission reductions
in moderate or more serious ozone
nonattainment areas. Among effective
control measures, RACT controls
significantly reduce VOC and NOX
emissions from major stationary
sources.
RACT is defined as the lowest
emission limitation that a particular
source is capable of meeting by the
application of control technology that is
reasonably available considering
technological and economic feasibility.1
Section 172 of the CAA sets forth
general requirements for SIPs in
nonattainment areas, including a
requirement that SIPs must include
reasonably available control measures
(RACM) for attainment of the NAAQS,
including emissions reductions from
existing sources through adoption of
RACT. CAA section 172(c)(1). Part D,
subpart 2 of the CAA sets forth
additional provisions for ozone
nonattainment areas. CAA sections 181–
185B. Sections 182(b)(2) and 182(f)(1) of
the CAA require states with moderate
1 See December 9, 1976 memorandum from Roger
Strelow, Assistant Administrator for Air and Waste
Management, to Regional Administrators,
‘‘Guidance for Determining Acceptability of SIP
Regulations in Non-Attainment Areas.’’ see also 44
FR 53761, 53762 (September 17, 1979).
E:\FR\FM\10OCR1.SGM
10OCR1
]]>Agencies
[Federal Register Volume 84, Number 197 (Thursday, October 10, 2019)]
[Rules and Regulations]
[Pages 54502-54507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21955]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2018-0511; FRL-10000-78-Region 2]
Approval of Air Quality Implementation Plans; New York;
Infrastructure Requirements for the 2008 Ozone, 2010 Sulfur Dioxide,
and 2012 Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving certain
elements of New York's State Implementation Plan (SIP) revisions,
submitted to demonstrate that the State meets the requirements of the
Clean Air Act (CAA) for the 2008 Ozone; 2010 Sulfur Dioxide; and 2012
particulate matter of 2.5 microns or less (PM2.5) National
Ambient Air Quality Standards (NAAQS). Section 110(a) of the CAA
requires that each state adopt and submit for approval into the SIP a
plan for the implementation, maintenance and enforcement of each NAAQS
promulgated by the EPA.
DATES: This final rule is effective on November 12, 2019.
FOR FURTHER INFORMATION CONTACT: Edward J. Linky, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3764, or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. What action is EPA taking?
II. What is the background information?
III. What is a section 110(a)(1) and (2) SIP?
IV. What elements are required under section 110(a)(1) and (2)?
V. What is EPA's approach to the review of infrastructure SIP
submissions?
VI. What did New York submit?
VII. How has the State addressed the elements of the section
110(a)(1) and (2) ``infrastructure'' provisions?
VIII. What comments did EPA receive in response to the proposed
action?
IX. What is EPA approving?
X. Statutory and Executive Order Reviews
I. What action is EPA taking?
The EPA is approving certain elements of the State of New York
Infrastructure State Implementation Plan (SIP) as meeting the section
110(a) infrastructure requirements of the Clean Air Act (CAA) for the
following National Ambient Air Quality Standards (NAAQS or standard):
2008 Ozone, 2010 sulfur dioxide (SO2), and 2012 particulate
matter of 2.5 microns or less (PM2.5). As explained below,
the EPA has determined that the State has the necessary infrastructure,
resources, and general authority to implement the standards noted
above.
II. What is the background information?
Section 110(a)(1) of the CAA requires states to submit for approval
into the SIP a plan that provides for the implementation, maintenance,
and enforcement of new or revised NAAQS within three years following
the promulgation of such NAAQS. The EPA commonly refers to such state
plans as ``infrastructure SIPs.''
On March 12, 2008, the EPA promulgated a revised NAAQS for
ozone. 73 FR 16436 (March 27, 2008).
On June 2, 2010), the EPA promulgated a revised primary
NAAQS for SO2. 75 FR 35520 (June 22, 2010).
On December 14, 2012, the EPA promulgated a revised
primary NAAQS for PM2.5 for the annual standard. 78 FR 3086
(Jan. 15, 2013).
The New York State Department of Environmental Conservation
(NYSDEC) submitted the following revisions to its Infrastructure State
Implementation Plan (ISIP):
2008 Ozone ISIP submitted on April 4, 2013
2010 SO2 ISIP submitted on October 3, 2013
2012 PM2.5 ISIP submitted on November 30, 2016
On August 26, 2016 (81 FR 58849), the EPA published its action on
certain elements of NYSDEC's April 4, 2013 SIP submittal pertaining to
the 2008 Ozone ISIP. The EPA's action addressed CAA section
110(a)(2)(D)(i)(I) which requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from contributing significantly to nonattainment of the NAAQS (commonly
referred to as prong 1), or interfering with maintenance of the NAAQS
(prong 2), in any other state and CAA section 110(a)(2)(D)(i)(II) which
requires SIPs to include
[[Page 54503]]
provisions prohibiting any source or other type of emissions activity
in one state from interfering with measures required to protect
visibility (prong 4). The EPA disapproved 110(a)(2)(D)(i)(I) (prongs 1
and 2) and approved 110(a)(2)(D)(i)(II) (prong 4) for the 2008 Ozone
NAAQS. 81 FR 58849, 58855 (August 26, 2016).
The EPA approved portions of New York's infrastructure SIP
submittals for the 2008 Ozone and 2010 SO2 NAAQS \1\
pertaining to CAA sections 110(a)(2)(C), (D)(i)(II) (prong 3), and (J),
including PSD interstate transport provisions.\2\ 81 FR 95047 (December
27, 2016).
---------------------------------------------------------------------------
\1\ The approval also included the 2008 Lead NAAQS, which is not
a subject of this action.
\2\ CAA 110(a)(2)(C) (requires SIPs to include a program to
provide for enforcement of emission limitations and other control
measures described in CAA 110(a)(2)(A)); CAA
110(a)(2)(D)(i)(II)(which requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one
state from interfering with measures required to prevent significant
deterioration of air quality in another state); CAA
110(a)(2)(J)(requirements related to consultation, public
notification and PSD and visibility protection).
---------------------------------------------------------------------------
III. What is a section 110(a)(1) and (2) SIP?
Section 110(a)(1) provides the procedural and timing requirements
for SIPs. Section 110(a)(2) lists specific elements that states must
meet for ``infrastructure'' 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 the EPA plans to implement, maintain and enforce each of the
NAAQS promulgated by the EPA. The EPA interprets this provision to
require states to address basic SIP requirements including emission
inventories, monitoring, and modeling to assure attainment and
maintenance of the standards. By statute, SIPs meeting the requirements
of section 110(a)(1) and (2) are to be submitted by states within three
years after promulgation of a new or revised standard.
IV. What elements are required under section 110(a)(1) and (2)?
The infrastructure requirements of CAA sections 110(a)(1) and (2),
relevant to this action, are discussed in the following EPA guidance
documents: 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;''
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;''
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2)'' (``2013 Guidance''); \3\ and March 17, 2016,
``Information on Interstate Transport ``Good Neighbor'' provision for
the 2012 Fine Particulate Matter (PM) National Ambient Air Quality
Standards under Clean Air Act (CAA) Section 110(a)(2)(D)(i)(I).''
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
The EPA reviews each infrastructure SIP submission with the
applicable statutory provisions of CAA 110(a)(2). The 14 elements
required to be addressed by CAA section 110(a)(2) are:
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
and for construction or modification of stationary sources;
110(a)(2)(D)(i)(I) and (II): Interstate pollution
transport;
110(a)(2)(D)(ii): Interstate and international pollution
abatement;
110(a)(2)(E): Adequate resources and authority, conflict
of interest, oversight of local governments and local authorities;
110(a)(2)(F): Stationary source monitoring and reporting;
110(a)(2)(G): Emergency powers;
110(a)(2)(H): Future SIP revisions;
110(a)(2)(I): Plan revisions for nonattainment areas
(under part D);
110(a)(2)(J): Consultation with government officials,
public notification, and PSD and visibility protection;
110(a)(2)(K): Air quality modeling and data;
110(a)(2)(L): Permitting fees;
110(a)(2)(M): 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 of the CAA. See 77 FR 46354 (August 3, 2012)
and 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
permit program requirements of section 110(a)(2)(C) for 2012
PM2.5 or the nonattainment planning requirements related to
section 110(a)(2)(I) for the 2008 Ozone, 2010 SO2, or 2012
PM2.5.
This action partially addresses Element D (interstate pollution
transport, interstate and international pollution abatement). As
mentioned in section II, the EPA previously disapproved
110(a)(2)(D)(i)(I) (prongs 1 and 2) and approved 110(a)(2)(D)(i)(II)
(prong 4) for the 2008 Ozone NAAQS. 81 FR 58849 (Aug. 26, 2016). The
EPA approved 110(a)(2)(D)(i)(II) (prong 3) for the 2008 Ozone and 2010
SO2 NAAQS. 81 FR 95047 (December 27, 2016). This action
addresses the remaining element D provisions for 2008 Ozone, 2010
SO2 and 2012 PM2.5 NAAQS, except for
110(a)(2)(D)(i)(I) (prongs 1 and 2) provisions for the 2010
SO2 NAAQS and the 2012 PM2.5 NAAQS, which will be
addressed in a subsequent action by the EPA. Therefore, with respect to
element D, this action addresses:
110(a)(2)(D)(i)(II) (prong 3) for the 2012
PM2.5 NAAQS;
110(a)(2)(D)(i)(II) (prong 4) for the 2010 SO2
NAAQS and 2012 PM2.5 NAAQS; and
110(a)(2)(D)(ii) for 2008 Ozone NAAQS, 2010 SO2
NAAQS and 2012 PM2.5 NAAQS.
V. What is EPA's approach to the review of infrastructure SIP
submissions?
The discussion of the EPA's approach to the review of
infrastructure SIP submissions is detailed in the ``Technical Support
Document for the EPA's proposed Rulemaking for the New York State
Implementation Plan Revision for Meeting the Infrastructure
Requirements in the Clean Air Act'' dated 2019 (TSD). The TSD is
available in the electronic docket (EPA-R02-OAR-2018-0511) at
www.regulations.gov. For additional information, the reader is also
referred to EPA's Proposed Rule. 84 FR 27559 (June 13, 2019).
Whenever the EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make Infrastructure SIP submissions to
provide for the implementation, maintenance, and enforcement of the
NAAQS. These submissions must meet the various requirements of CAA
section
[[Page 54504]]
110(a)(2), as applicable. Due to ambiguity in some of the language of
CAA section 110(a)(2), the EPA believes that it is appropriate to
interpret these provisions in the specific context of acting on
infrastructure SIP submissions. The EPA has previously provided
comprehensive guidance on the application of these provisions through a
guidance document for infrastructure SIP submissions and through
regional actions on infrastructure submissions.\4\ Unless otherwise
noted below, we are following that existing approach in acting on these
submissions. In addition, in the context of acting on such
infrastructure submissions, the EPA evaluates the submitting state's
SIP for facial compliance with statutory and regulatory requirements,
not for the state's implementation of its SIP.\5\ The EPA has other
explicit Clean Air Act authority to address issues concerning a state's
implementation of its SIP.
---------------------------------------------------------------------------
\4\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on New York's infrastructure SIP to address the Nitrogen
Dioxide NAAQS, 85 FR 25066, 25067 (May 2, 2014).
\5\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. Thomas, 902 F.3d 971
(Aug. 30, 2018).
---------------------------------------------------------------------------
VI. What did New York submit?
NYSDEC submitted the following SIP submittals which address the
infrastructure requirements for the identified NAAQS:
2008 Ozone ISIP submitted on April 4, 2013
2010 SO2 ISIP submitted on October 3, 2013
2012 PM2.5 ISIP submitted on November 30, 2016
New York's section 110 submittals demonstrate how the State, where
applicable, has a plan in place that meets the requirements of section
110 for the 2008 Ozone, 2010 SO2, and 2012 PM2.5
NAAQS. The plans reference the current New York Air Quality SIP, the
New York Codes, 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 the 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/sips-ny.
VII. How has the State addressed the elements of the section 110(a)(1)
and (2) ``infrastructure'' provisions?
The EPA has determined that New York has the necessary
infrastructure, resources, and general authority to address certain
elements of the section 110(a)(1) and (2) infrastructure provisions for
the 2008 Ozone, 2010 SO2, and 2012 PM2.5 NAAQS.
In summary, the EPA is approving the following elements and sub-
elements of New York's Infrastructure SIP submittal for 2008 Ozone,
2010 SO2, and 2012 PM2.5 NAAQS (except as
indicated): 110(a)(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] for the 2012
PM2.5 NAAQS only; 110(a)(2)(D)(i)(II) [interstate
transport], Prong 3 for 2012 PM2.5 NAAQS, and Prong 4 for
the 2010 SO2 NAAQS and the 2012 PM2.5 NAAQS;
110(a)(2)(D)(ii) [interstate and international pollution abatement];
110(a)(2)(E)[adequate resources, state boards/conflict of interest,
oversight of local governments and local authorities];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, and PSD for the 2012
PM2.5 NAAQS only]; 110(a)(2)(K) [air quality and modeling/
data]; 110(a)(2)(L) [permitting fees]; and 110(a)(2)(M) [consultation/
participation by affected local entities].
The EPA is not acting on New York's submittal for 2012
PM2.5 as it relates to nonattainment provisions, including
the nonattainment NSR program required by part D in section
110(a)(2)(C) and is not acting on New York's submittals for 2008 Ozone,
2010 SO2 and 2012 PM2.5 as they relate to the
measures for nonattainment required by part D in section 110(a)(2)(I),
because the State's Infrastructure SIP submittals do not include
nonattainment requirements related to these 2 elements. The EPA is also
not acting on the visibility protection portion of element J for the
2012 PM2.5 submittal.
VIII. What comments did EPA receive in response to the proposed action?
On June 13, 2019 (84 FR 27559), EPA proposed to approve certain
elements of New York's ISIP revisions, submitted to demonstrate that
the State meets the requirements of the CAA for the 2008 Ozone; 2010
SO2 and 2012 PM2.5 NAAQS. EPA received an
erroneously filed comment from one commenter and an adverse comment
from an anonymous commenter, in response to the June 13, 2019 proposed
action.
Comment: A comment was submitted on EPA's proposed rule to deny New
York's 126 petition submitted by Louisville Gas and Electric and
Kentucky Utilities Companies.
EPA Response: These comments were submitted to the Docket for this
action but are not applicable to this action and are filed in error.
The comments will be addressed separately in the EPA's Response to
Comments on the Proposed Action on Section 126(b) Petition from New
York (Docket ID No. EPA-HQ-OAR-2018-0170).
Comment: EPA must provide a complete record that New York has
adequate resources and personnel to implement the SIP. EPA must audit
NYSDEC to ensure proper funding and personnel to implement the SIP.
EPA response: EPA disagrees with this comment. An audit of NYSDEC
is not required. CAA Section 110(a)(2)(E)(i) (Element E) requires that
the State provide ``necessary assurances'' that it will have adequate
funding and personnel to implement the relevant NAAQS. As stated in the
proposal, in the context of acting on infrastructure submissions, EPA
evaluates the submitting state's SIP for facial compliance with
statutory and regulatory requirements, not for the state's
implementation of its SIP.\6\ The EPA has other authority to address
any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
---------------------------------------------------------------------------
\6\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, 902 F.3d 971
(August 30, 2018. Also see proposed rulemaking in this action 84 FR
27559, 27561 (June 13, 2019).
---------------------------------------------------------------------------
The requirements of Element E, that the State have adequate
resources and personnel, are clearly demonstrated in New York's three
ISIP submittals dated April 4, 2013 (for the 2008 ozone ISIP), October
3, 2013 (for the 2010 SO2 ISIP), and November 30, 2016 (for
the 2012 PM2.5 ISIP), as detailed by the EPA in its
technical support document (TSD) at pages 11-12, included in this
docket. The submittals indicated that NYSDEC's Division of Air
Resources (DAR) has over 200 full-time positions and receives both
operating and capital funding. As New York's submittals indicates,
operating funds are allocated to DAR annually and are used for daily
administrative expenses. These expenses include salaries, fringe
benefit, and indirect and non-personnel services such as travel, supply
and equipment costs. Indirect costs are, in turn, allocated to other
Departments or
[[Page 54505]]
divisions that support DAR activities. DAR is allocated operating funds
from five sources: General Fund, Utility Environmental Regulatory
Account, Co-operative Agreements (i.e., EPA section 103 and 105 grants)
and the Clean Air Fund, which is comprised of the Title V and Mobile
Source accounts.
Capital funds are allocated to the DAR at the discretion of the New
York State legislature and are used for the financing or acquisition of
capital facilities such as the construction of an air monitoring site.
DAR is allocated Capital funds from three sources: General Fund, Mobile
Source Account and Rehabilitation and Improvement.'' \7\
---------------------------------------------------------------------------
\7\ See submission of NY SIP for interstate transport of
PM2.5.
---------------------------------------------------------------------------
Therefore, the EPA has determined that the NYSDEC has provided
necessary assurances that it has sufficient funding and personnel to
meet the requirements of section 110(a)(2)(E)(i) for the 2008 ozone,
2010 SO2 and 2012 PM2.5 NAAQS.
Comment: New York does not have adequate resources to implement a
Regional Haze Program and EPA must impose a FIP on New York for two
sources which commenter does not identify.
EPA Response: EPA disagrees that New York lacks adequate resources
to implement a Regional Haze Program. As noted above, Element E,
specifically CAA Section 100(a)(2)(E)(i), does not require an audit of
resources and personnel. New York's Regional Haze plan was approved
into the SIP for 18 facilities. 77 FR 51915 (Aug. 28, 2012). Only two
facilities, Danskammer Generating Station and Roseton Generating
Station, were subject to the Federal Implementation Plan (FIP).
Specifically, New York's SO2, NOX and PM Best
Available Retrofit Technology (BART) determinations and emissions
limits for Danskammer Generating Station, Unit 4, and New York's
SO2 BART determinations and emissions limit for Roseton
Generating Station, Units 1 and 2, were subject to the FIP. EPA's FIP
determination did not cite resources or personnel as a basis for the
FIP, rather, the State had provided a regional haze SIP with supporting
analysis, but EPA disagreed with the specific BART determinations with
regard to specific pollutants at specific units at these facilities
that the State had submitted. 77 FR 51915 (Aug. 28, 2012). Moreover,
for each of the sources, the EPA subsequently approved a source-
specific SIP revision and withdrew the FIP. 82 FR 57126 (Dec. 4, 2017)
(approving the SIP for Danskammer Generating Station, Unit 4) and 83 FR
6970 (Feb. 16, 2018) (approving the SIP for Roseton Generating Station,
Units 1 and 2).
Comment: Elements, F, H, K, L and M: EPA does not provide any
rationale for approving these elements other than to refer the reader
to previous actions. EPA must review each submission on its own merits.
EPA Response: EPA reviewed and evaluated each submittal addressed
in this action. As explained in the proposal (84 FR 27559) and the
accompanying TSD for this rulemaking, and consistent with EPA's ISIP
guidance, certain elements of the Infrastructure SIP submittals are not
pollutant specific. EPA proposed to find that, for certain elements,
including Elements F, H, K, L and M, the information provided in these
submittals is consistent with or identical to prior submittals that
addressed these specific elements. As explained in the proposal, EPA's
prior actions on ISIPs included a full evaluation of the information
provided by the State for each element, found the New York SIP
submittal was sufficient, and approved it. New York, in each of its
submittals in this action, has affirmed that the existing SIP meets the
requirements of CAA sections 110(a)(1) and (2). The EPA is not aware
of, and the commenter has not identified, anything about the 2008
ozone, 2010 SO2, or 2012 PM2.5 NAAQS that would
cause New York's SIP for these elements to be insufficient. In
addition, New York's submissions for the 2008 ozone, 2010
SO2, or 2012 PM2.5 NAAQS identify the basis for
approving Elements F, H, K, L and M, and that is detailed in the TSD
for this action at pages 12-14 for Element F, page 15-16 for Element H,
page 20-21 for Element K, page 21 for Element L and pages 21-22 for
Element M. Accordingly, approval of the pending submittal for these
elements is appropriate.
Comment: For Element H, the EPA must disapprove this element until
the EPA establishes a SHL for the PM2.5 NAAQS. In
establishing the PM2.5 NAAQS under the 1997 standard the EPA
stated that no SHL was able to be established so a placeholder value
was being imposed at 500.
EPA Response: Element H concerns future SIP revisions and does not
relate to establishment of a significant harm level (SHL). The issue of
establishment of an SHL relates to Element G (Emergency Powers). In
promulgating the 2012 PM2.5 NAAQS, EPA retained the pre-
existing level of 500 micrograms per cubic meter (ug/m\3\), 24-hour
average, for the Air Quality Index (AQI) value of 500 and did not
establish a significant harm (SHL) for PM2.5. In the absence
of a SHL, EPA maintains that the central components of a contingency
plan would be to reduce emissions for the PM2.5 sources at
issue and to provide public communication as needed. See 2013 Guidance
at pages 47-49. NYSDEC's November 2016 ISIP submittal addressing the
Element G requirements for the 2012 PM2.5 NAAQS meets the
requirements of the EPA's 2013 guidance and, as explained in detail in
the EPA's TSD for this ISIP submittal, is acceptable to the EPA.
Comment: The comment asserts that the EPA must review Element L
with respect to permitting fees and reveal any defects at this time.
The EPA cannot point to a previous approval of a similar or nearly
similar submittal. EPA must audit the state's title V fee collection
system to affirmatively prove that adequate fees are being collected in
order to implement the title V program. The EPA cannot rely on a state
claim without affirmatively confirming it.
EPA response: CAA 110(a)(2)(L) sets forth specific requirements
that are in effect ``until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under subchapter V [title V].'' The Administrator previously
approved New York's title V operating program. EPA granted interim
approval to the Title V operating permit program submitted by the State
of New York effective December 9, 1996. 61 FR 57589 (November 7, 1996).
The final interim approval at 61 FR 57590, determines that ``the State
has the authority to collect sufficient fees to implement its title V
program'' and, at 61 FR 57592, allows the State to ``issue operating
permits pursuant to Title V of the Act to all major stationary
sources.'' See also 61 FR 63928 (Dec. 2, 1996) (correction); 40 CFR
part 70, Appendix A. EPA subsequently granted full approval to New
York's program, effective November 30, 2001. 66 FR 63180 (December 5,
2011). In so doing, the Administrator found that the fee program was
sufficient to cover all CAA permitting, implementation, and enforcement
for new and modified major sources as well as existing major sources,
which is consistent with the requirements of CAA 110(a)(2)(L).
Statutory and regulatory citations related to the fee aspects of New
York's title V operating program are found in the TSD at p. 21.
Accordingly, and consistent with EPA's ISIP guidance, reliance on the
existing, EPA-approved title V fee program is sufficient to approve
this element and an additional examination of that approved program is
not necessary.
[[Page 54506]]
IX. What is EPA approving?
The EPA is approving New York's submittals as meeting the
infrastructure requirements for the 2008 Ozone, 2010 SO2 and
2012 PM2.5 NAAQS for all section 110(a)(2) elements and sub-
elements, as follows: (A), (B), (C) [enforcement measures and PSD
program for major sources for 2012 PM2.5 only], (D)(i)(II)
prong 3 [for 2012 PM2.5 only], (D)(i)(II) prong 4 [for 2010
SO2 and 2012 PM2.5 only], D(ii), (E), (F), (G),
(H), (J) [for consultation, public notification and prevention of
significant deterioration 2012 PM2.5 only], (K), (L) and
(M).
The EPA is not acting on New York's submittal for 2012
PM2.5 as it relates to nonattainment provisions, the NSR
program required by part D, in section 110(a)(2)(C) and is not acting
on New York's submittals for 2008 Ozone, 2010 SO2 and 2012
PM2.5 NAAQS as they relate to the measures for attainment
required by section 110(a)(2)(I), as part of this proposed approval
because the State's infrastructure SIP submittals do not include
nonattainment requirements and the EPA will act on them when, if
necessary, they are submitted.
The EPA is also not acting on 110(a)(2)(D)(i)(I) provisions (prongs
1 and 2) for the 2010 SO2 NAAQS and the 2012
PM2.5 NAAQS, which will be addressed in a subsequent action
by the EPA.
X. 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, the 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) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
This rulemaking pertaining to New York's section 110(a)(2)
infrastructure requirements for the 2008 Ozone NAAQS, 2012
PM2.5 NAAQS, and 2010 SO2 NAAQS 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 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, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate matter,
Reporting and recordkeeping requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq. Subpart HH New York.
Dated: September 23, 2019.
Peter D. Lopez,
Regional Administrator, Region 2.
Part 52 chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. In Sec. 52.1670, the table in paragraph (e) is amended by adding
entries for ``Section 110(a)(2) Infrastructure Requirements for the
2008 Ozone NAAQS'', ``Section 110(a)(2) Infrastructure Requirements for
the 2010 SO2 NAAQS'', and ``Section 110(a)(2) Infrastructure
Requirements for the 2012 PM2.5 NAAQS'' at the end of the
table to read as follows.
Sec. 52.1670 Identification of plan.
* * * * *
(e) * * *
EPA-Approved New York Non-Regulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable
geographic or New York EPA approval
Action/SIP element nonattainment submittal date date Explanation
area
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Statewide....... 4/4/2013 10/10/2019, This action addresses the
Infrastructure Requirements [insert following CAA elements:
for the 2008 Ozone NAAQS. Federal 110(a)(2)(A), (B), (D)(ii),
Register (E), (F), (G), (H), (K), (L)
citation]. and (M).
Section 110(a)(2) Statewide....... 10/3/2013 10/10/2019, This action addresses the
Infrastructure Requirements [insert following CAA elements:
for the 2010 SO2 NAAQS. Federal 110(a)(2)(A), (B), (D)(i)(II)
Register prong 4, (D)(ii), (E), (F),
citation]. (G), (H), (K), (L) and (M).
[[Page 54507]]
Section 110(a)(2) Statewide....... 11/30/2016 10/10/2019, This action addresses the
Infrastructure Requirements [insert following CAA elements:
for the 2012 PM2.5 NAAQS. Federal 110(a)(2)(A), (B), (C)
Register [enforcement measures and PSD
citation]. program for major sources],
(D)(i)(II) prong 3, (D)(ii),
(E), (F), (G), (H), (J) [for
consultation, public
notification and prevention
of significant deterioration]
(K), (L) and (M).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2019-21955 Filed 10-9-19; 8:45 am]
BILLING CODE 6560-50-P
