Approval of Air Quality Implementation Plans; New York; Infrastructure Requirements for the 2015 Ozone, National Air Quality Standards, 35034-35042 [2021-14057]
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35034
Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
approve state choices, provided that
they meet the criteria of the Clean Air
Act. Accordingly, this proposed 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 proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 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 the 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)).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where the EPA or
an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249 (November 9, 2000)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference, Nitrogen
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dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: June 24, 2021.
Walter Mugdan,
Acting Regional Administrator, EPA Region
2.
[FR Doc. 2021–14056 Filed 6–30–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2020–0301; FRL 10025–51–
Region 2]
Approval of Air Quality Implementation
Plans; New York; Infrastructure
Requirements for the 2015 Ozone,
National Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
elements of New York’s State
Implementation Plan (SIP) revisions,
submitted to demonstrate that the State
meets the requirements of section
110(a)(1) and (2) of the Clean Air Act
(CAA) for the 2015 Ozone 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: Comments must be received on
or before August 2, 2021.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R02–OAR–2020–0301 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
SUMMARY:
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additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets. To reduce the
risk of COVID–19 transmission, for this
action we will not be accepting
comments submitted by mail or hand
delivery.
All documents in the docket are listed
on the www.regulations.gov website.
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, is not placed on
the internet. Publicly available docket
materials are available electronically at
www.regulations.gov. To reduce the
transmission of COVID–19, we do not
plan to offer hard-copy review of the
docket for this action. Please email the
person listed in the FOR FURTHER
INFORMATION CONTACT if you need to
make alternative arrangements for
access to the docket.
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 Linky.Edward@epa.gov.
SUPPLEMENTARY INFORMATION:
I. What action is the EPA proposing?
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 the 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 action is the EPA taking?
IX. Statutory and Executive Order Reviews
I. What action is the EPA proposing?
The EPA is proposing to approve
elements of the State of New York
Infrastructure State Implementation
Plan (SIP) as meeting the section
110(a)(1) and (2) infrastructure
requirements of the Clean Air Act (CAA)
for the 2015 Ozone National Ambient
Air Quality Standards (NAAQS or
standard), except for the CAA section
110(2)(D)(i)(I) transport provisions
which will be addressed in a separate
action. As explained below, the EPA is
proposing to find that the State has the
necessary infrastructure, resources, and
general authority to implement the
standards noted above.
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II. What is the background
information?
Section 110(a)(1) of the CAA requires
states to submit for approval into the
SIP, within 3 years after the
promulgation of a new or revised
NAAQS, a plan that meets the
applicable requirements of section
110(a)(2). The EPA commonly refers to
such state plans as ‘‘infrastructure
SIPs.’’ The EPA promulgated a revised
NAAQS for ozone in 2015 (‘‘2015
Ozone’’). 80 FR 65291 (October 26,
2015).
The New York State Department of
Environmental Conservation (NYSDEC)
submitted the following revisions to its
Infrastructure State Implementation
Plan (ISIP):
• 2015 Ozone ISIP submitted on
September 25, 2018.
• The September 25, 2018 transmittal
letter indicated that NYSDEC would be
updating Element G, which includes
updates to the Air Quality Index and
Emergency Contract.
• The updated Element G was
received, along with a letter to EPA
Regional Administrator Peter D. Lopez
on July 10, 2019, and is incorporated
into this assessment by the EPA (which,
together with the September 25, 2018
submittal, is referred to herein as the
‘‘submittal’’).
III. What is a section 110(a)(1) and (2)
SIP?
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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 ensure
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: (1)
The EPA’s October 2, 2007
memorandum entitled, ‘‘Guidance on
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SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-Hour
Ozone and PM2.5 National Ambient Air
Quality Standards;’’ (2) the EPA’s
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), which addresses the 2008
ozone, 2010 nitrogen dioxide (NO2),
2010 sulfur dioxide (SO2), and 2012
particulate matter (PM2.5) NAAQS, as
well as infrastructure SIPs for new or
revised NAAQS promulgated in the
future.1
The EPA reviews each infrastructure
SIP submission with the applicable
statutory provisions of CAA section
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.
This proposed action will not address
the section 110(a)(2)(D)(i)(I) (prongs 1
and 2) portions of the New York 2015
Ozone infrastructure SIP. The EPA will
act on those portions of New York’s
infrastructure SIP in a separate
rulemaking action.
V. What is the EPA’s approach to the
review of infrastructure SIP
submissions?
Whenever the EPA promulgates a new
or revised NAAQS, CAA section
1 All referenced memoranda are included in the
docket for today’s action.
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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
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.2
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.3 The
EPA has other 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:
• 2015 Ozone ISIP Revisions,
submitted on September 25, 2018.
• 2015 Ozone ISIP Element G,
submitted in a July 10, 2019 letter to
Region 2 EPA Regional Administrator,
Peter D. Lopez, entitled, ‘‘Revisions to
Air Quality Index and Contacts’’ (which,
together with the September 25, 2018
submittal, is referred to herein as the
‘‘submittal’’).
New York’s Infrastructure SIP
submittal demonstrates how the State,
where applicable, has a plan in place
that meets the requirements of section
110 for the 2015 Ozone NAAQS. The
plan references the current New York
Air Quality SIP, the New York Codes,
Rules and Regulations (NYCRR), the
New York Environmental Conservation
2 The 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 the EPA’s prior action on
New York’s infrastructure SIP to address the
Nitrogen Dioxide NAAQS, 79 FR 25066, 25067
(May 2, 2014).
3 See the United States Court of Appeals for the
Ninth Circuit’s decision in Montana Environmental
Information Center v. Thomas, 902 F.3d 971 (Aug.
30, 2018).
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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?
EPA addresses the infrastructure
elements as follows:
Element A: Emission Limits and Other
Control Measures: Section 110(a)(2)(A)
requires SIPs to include enforceable
emission limits and other control
measures, means, or techniques, and
schedules for compliance. In its
submittal, the NYSDEC stated that
regulations have been adopted under 6
NYCRR to limit emissions of nitrogen
oxides (NOX) and volatile organic
compound (VOC) for purposes of
attaining several ozone NAAQS.
Regulations approved by EPA into the
SIP are listed in a table under 40 CFR
52.1670(c), titled ‘‘EPA-Approved New
York State Regulations and Laws.’’ The
NYSDEC submittal indicates that DEC’s
November 10, 2017 SIP submission for
the New York-Northern New JerseyLong Island, NY-NJ-CT nonattainment
area (New York metropolitan area, or
NYMA) for the 2008 ozone NAAQS
identified the permanent and
enforceable regulations that primarily
yielded reductions of NOX and VOC
emissions.4 In its submittal, New York
identifies provisions of its federally
enforceable SIP that contain enforceable
emission limits and other control
measures, such as 6 NYCRR subpart
201–1.4(a), which states that each
permitted facility shall take all
necessary and appropriate actions to
prevent exceedance of applicable
emissions limits during periods of startup, shutdown, or malfunction.
Moreover, the NYSDEC’s submittal
states that it does not authorize any
‘‘director’s variance’’ or ‘‘director’s
discretion’’ to allow revisions to or
exemptions from SIP submission
limitations without further public
participation and approval from the
EPA.
The SIP submittal does not account
for additional NOX and VOC control
measures needed to attain the 2015
Ozone NAAQS. NYSDEC stated in its
submission that these control measures
will be addressed in the New York
4 https://www.dec.ny.gov/docs/air_pdf/
sip2008o3nymafinal.pdf.
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metropolitan area’s (‘‘NYMA’’)
attainment SIP that is due by August 3,
2021.
The EPA is proposing to determine
that New York has met the requirements
of section 110(a)(2)(A) of the CAA with
respect to the 2015 Ozone NAAQS
based on the enforceable emission limits
and other control measures in Title 6 of
the NYCRR.
Element B: Ambient air quality
monitoring/data system: Section
110(a)(2)(B) requires SIPs to include
provisions to provide for the
establishment and operation of ambient
air quality monitors, to monitor,
compile, and analyze ambient air
quality data, and to make these data
available to the EPA upon request. The
NYSDEC submittal for the 2015 Ozone
ISIP details the State’s authority to
adopt and enforce provisions of the SIP
and to operate an ambient air quality
monitoring network. The EPA proposes
to find that these provisions
demonstrate that NYSDEC has the
requisite authority to support Element
B. NYSDEC states that it will continue
to operate an air quality monitoring
network that complies with the EPA
requirements and will submit this data
to the EPA’s Air Quality System (AQS).
NYSDEC’s submittal states that it
monitors ozone at 28 sites across the
State using continuous and/or manual
instrumentation, in accordance with 40
CFR part 53 and 40 CFR part 58. These
sites are part of the federally mandated
network of NCore multipollutant sites
(NCore), the State and Local Air
Monitoring Stations (SLAMS) network,
and Photochemical Assessment
Monitoring Stations (PAMS), with
additional VOC monitoring conducted
through the EPA’s National Ambient Air
Toxics (NATTS) network.
Authority: New York’s 2015 Ozone
ISIP submittal states that while the
NYSDEC does not have specific
regulations authorizing monitoring
activities, the operation of monitoring
networks falls under the broad statutory
authority granted to the agency and the
Commissioner of the NYSDEC through
New York’s Environmental
Conservation Law (ECL) section 1–0101
(declaring New York’s policy to prevent
air, water and land pollution), section
3–0301 (granting the NYSDEC
Commissioner the power to monitor the
environment and identify changes and
conditions in ecological systems and to
warn of emergency conditions), and
section 19–0103 (declaring New York’s
policy to maintain a reasonable degree
of purity of the air resources of the state
and require the use of all available
practical and reasonable methods to
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prevent and control air pollution in
New York).
Monitoring network:
The NYSDEC operates API–T400
ozone monitors at 28 sites across the
State. In addition to monitoring for
ozone, the monitoring sites also monitor
for ozone precursors (NOX and VOCs).
The EPA’s promulgation of the 2015
Ozone NAAQS altered PAMS
requirements. The new rule requires
that PAMS stations be located at urban
sites with populations of greater than
one million people regardless of
attainment status. To comply with
PAMS requirements, sites were
originally established in Queens County
(NYC) and Monroe County (Rochester).
These two PAMS sites have been
relocated with the EPA’s approval. The
Queens site was relocated to an existing
PAMS site in the Bronx (NYC), and the
Rochester site was relocated to a new
site at the Flax Pond Marine Laboratory
in Suffolk County on the Long Island
Sound. The Flax Pond Marine
Laboratory site will assist in monitoring
the high ozone gradient across Long
Island Sound.
Annual Monitoring Network Plan:
The NYSDEC prepares an Annual
Monitoring Network Plan (Plan) that
describes in detail the specifics of the
monitoring network as required by 40
CFR Section 58.10. The Plan is made
available for public inspection and
comment for at least 30 days and then
submitted to the EPA Region 2 Regional
Administrator for approval or
disapproval. The 2020 Plan was
submitted to the EPA on September 23,
2020, following public review, and the
EPA approved all Ozone related
monitoring activities on January 11,
2021. The NYSDEC ensures that New
York will meet the monitoring
requirements promulgated under the
2015 Ozone NAAQS.
The EPA is therefore proposing that
New York has met the requirements of
section 110(a)(2)(B) of the CAA with
respect to the 2015 Ozone NAAQS
based on the authority provided by the
ECL and the operation of an EPAapproved ambient air monitoring
network.
Element C: Program for enforcement
of control measures and for construction
or modification of stationary sources:
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. The
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three sub-elements of Element C are
addressed below.
Enforcement of SIP Measures:
Statewide enforcement of new and
modified sources, minor modifications
of minor sources, and major
modifications in areas designated as an
attainment area or as an unclassifiable
area for the 2015 Ozone NAAQS, is
required by Title I of the Clean Air Act
Part C (Major Sources of Prevention of
Significant Deterioration). ECL section
19–0305 authorizes the NYSDEC
Commissioner to enforce the codes,
regulations, and rules duly promulgated
or revised by the NYSDEC in
accordance with Article 19 of the ECL.
The New York federally approved SIP is
a compilation of rules and procedures
that have been duly promulgated by the
NYSDEC in accordance with its
statutory authority and consistent with
the State APA. The NYSDEC has the
authority to adopt all SIP measures.
New York enforces emission limits and
control measures through Title 21 of
ECL article 71, ‘‘Enforcement of Article
19 and Air Pollution Emergency Rules
and Regulations.’’ 6 NYCRR part 201,
entitled, ‘‘Permits and Regulations’’ also
includes enforcement provisions.
Specifically, subpart 201–1.13, entitled,
‘‘access to regulated facilities,’’ grants
representatives of the NYSDEC access in
order to determine compliance with
federal and state air pollution
requirements, regulations or laws.
Regulation of minor sources and
minor modifications:
The NYSDEC issues permits for minor
sources of air pollution through 6
NYCRR Subpart 201–4 (‘‘Minor Facility
Registration’’) and Subpart 201–5
(‘‘State Facility Permits’’), and further
regulates these sources through
applicable state and federal regulations,
including the SIP-approved 6 NYCRR
Part 201, in order to control emissions
of NOX and VOCs.
Preconstruction PSD Permitting of
Major Sources and Major Modifications:
The NYSDEC has permitting authority
under 6 NYCRR Part 231, ‘‘New Source
Review for New and Modified
Facilities’’ to implement the PSD
program as required by the CAA Title 1
Part C for all sources subject to PSD in
areas designated as in attainment or
unclassifiable for the 2015 Ozone
NAAQS. Part 231 of 6 NYCRR was
revised in 2009 to comply with federal
guidelines. This revision allowed the
NYSDEC to resume administering the
PSD program, which includes criteria
pollutants (i.e., all pollutants subject to
a NAAQS, regulated under a New
Source Performance Standard, or
regulated under the CAA, with the
exception of Section 112 Hazardous Air
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Pollutants), which had been
administered by the EPA since 2004.
See 75 FR 70140 (Nov. 17, 2010).
6 NYCRR Part 231 also encompasses
the regulation of greenhouse gases. The
EPA approved the majority of this
revised regulation into the New York
SIP. (see 81 FR 95047 (Dec. 27, 2016)).
New York’s 2015 Ozone ISIP
submittal states that all applicable
federal PSD requirements that are
included in PSD permits are
incorporated into Title V operating
permits, and that all federally
enforceable requirements are applied
and enforced. In its submittal, New York
affirms that the current NSR and PSD
programs remain in effect and apply to
the State’s major stationary sources, and
that the requirements of these programs
are federally enforceable.
The EPA is proposing to determine
that New York has met the requirements
of section 110(a)(2)(C) of the CAA with
respect to the 2015 Ozone NAAQS. The
EPA proposes to find that the State has
adequate authority and regulations to
ensure that SIP-approved control
measures are enforced. The EPA is
proposing to find that New York has a
SIP-approved minor new source review
program. The EPA also proposes to find,
based on the approval of New York’s
PSD program, that New York has the
authority to regulate the construction of
new or modified stationary sources to
meet the PSD program requirements.
Element D: Interstate transport: CAA
section 110(a)(2)(D)(i) consists of four
separate elements, or ‘‘prongs.’’ CAA
section 110(a)(2)(D)(i)(I) requires SIPs to
contain adequate provisions prohibiting
emissions in amounts that will
contribute significantly to
nonattainment of the NAAQS in any
other state (prong 1), and adequate
provisions prohibiting emissions that
will interfere with maintenance of the
NAAQS by any other state (prong 2).
CAA section 110(a)(2)(D)(i)(II) requires
SIPs to contain adequate provisions
prohibiting emissions in amounts that
will interfere with any other state’s
required measures to prevent significant
deterioration of its air quality (prong 3),
and adequate provisions prohibiting
emissions in amounts that will interfere
with any other state’s required measures
to protect visibility (prong 4).
infrastructure SIP in a separate
rulemaking action.
Prongs 1 and 2: Significant Contribution
To Attainment and Interference With
Maintenance
Prong 4: Visibility
In its 2015 Ozone ISIP submittal, New
York has affirmed that the State has met
its visibility obligations through its
coordination with regional Class I area
states within the framework of the MidAtlantic/Northeast Visibility Union
(MANE–VU), and its applicable SIP
This proposed action will not address
the portions of the New York 2015
Ozone infrastructure SIP concerning
prongs 1 and 2. The EPA will act on
these portions of New York’s
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Prong 3: Interference With PSD
Under section 110(a)(2)(D)(i)(II)
(prong 3), SIPs must contain provisions
prohibiting emissions in amounts that
would interfere with measures required
to be in any other State’s SIP under CAA
Part C to prevent the significant
deterioration of air quality. To satisfy
section 110(a)(2)(D)(i)(II), New York
relies on its SIP-approved
nonattainment NSR and PSD permitting
programs, which are implemented
through 6 NYCRR Part 231 to prevent
significant deterioration of air quality
within the state and other nearby states.
New York has affirmed that new major
sources and major modifications in New
York are subject to the State’s federally
approved PSD program, which applies
to all NSR-regulated pollutants, and
satisfies the EPA’s PSD requirements.
The EPA recognizes that sources in
New York not subject to PSD because
they are in a nonattainment area may
also have the potential to interfere with
PSD in an attainment or unclassifiable
area of another state. The EPA will
consider and may approve
nonattainment NSR provisions in
determining whether a SIP satisfies
prong 3 with respect to sources located
in areas subject to nonattainment NSR,
and thus not subject to PSD permitting.
However, SIP revisions to address
nonattainment NSR requirements for
any new or revised NAAQS are due on
a separate timeframe under section
172(b) of the CAA and are not subject
to the timeframe for submission of
infrastructure SIPs under section
110(a)(1). Therefore, a fully approved
nonattainment NSR program for any
previous NAAQS may be considered by
the EPA as adequate for purposes of
meeting the requirement of prong 3.
New York has a SIP-approved
nonattainment NSR program that
applies to all NSR-regulated pollutants,
ensuring regulation of major sources
and major modifications in
nonattainment areas.
Accordingly, the EPA is proposing to
approve the infrastructure SIP
submission as meeting the applicable
prong 3 requirements of section
110(a)(2)(D)(i)(II) for the 2015 Ozone
NAAQS.
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submissions, including its EPAapproved Regional Haze SIP, as well as
SIP provisions that replaced a Federal
Implementation Plan (FIP) for the
Danskammer and Roseton Generating
Stations. On August 28, 2012, the EPA
approved New York’s Regional Haze SIP
submittal as part of New York’s SIP (see
77 FR 51915).5
In New York’s 2015 Ozone ISIP
submittal, it noted that the five-year
progress report SIP that it submitted on
June 16, 2015 (and subsequently
approved by EPA on September 29,
2017 (see 82 FR 45499)) demonstrates
that New York continues to meet its
obligations to reduce visibilityimpairing pollutants.
The EPA is proposing that New York
satisfies the section 110(a)(2)(D)(i)(II)
requirement for visibility (or prong 4).
New York addresses the visibility
protection requirements for the 2015
Ozone NAAQS through its Regional
Haze SIP, which ensures that emissions
from sources within the State are not
interfering with measures to protect
visibility in other states.
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110(a)(2)(D)(ii): Interstate Pollution
Abatement and International Transport
Provisions
CAA section 110(a)(2)(D)(ii) requires
SIPs to include provisions ensuring
compliance with the applicable
requirements of CAA sections 126 and
115 (relating to interstate and
international pollution abatement). In
assessing CAA section 110(a)(2)(D)(ii),
we reviewed the information presented
by New York in its 2015 Ozone
infrastructure SIP submission, as well as
relevant portions of the EPA-approved
New York SIP.
Section 126(a) requires that SIPs
mandate that new (or modified) major
sources subject to PSD notify
neighboring States of potential air
pollution impacts. New York indicates
that it has addressed this requirement
through 6 NYCRR Paragraph 201–
6.3(b)(1), which states: ‘‘The department
5 In the August 28, 2012 rulemaking approving
New York’s Regional Haze SIP submittal, the EPA
promulgated a partial FIP to address our
disapproval of New York’s Best Available Retrofit
(BART) determinations for the Roseton Generating
Station’s Unit’s 1 and 2 and Danskammer
Generating Station’s Unit 4. See 77 FR 51915
(August 28, 2012). The emission reductions under
the FIP were not necessary to demonstrate that New
York met its share of the emissions reductions
needed to meet reasonable progress goals (found at
40 CFR 51.308(d)(1)) at Class I areas affected by
New York’s emissions. The EPA fully approved that
aspect of New York’s Regional Haze SIP in the
August 2012 rulemaking. See 77 FR 51915. The
FIPs for Danskammer and Roseton have
subsequently been replaced by SIP provisions
approved by the EPA for Danskammer (82 FR 57126
(December 14, 2017)) and Roseton (83 FR 6970
(February 16, 2018)).
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shall give notice of each draft permit to
any affected state on or before the time
that the department provides this notice
to the public under the requirements of
this Part or Part 621 of this Title.’’
Section 126(b) allows states to
petition the EPA Administrator for a
finding that a source or group of sources
interferes with its ability to attain or
maintain the NAAQS in violation of
section 110(a)(2)(D)(i), and section
126(c) discusses violations as a result of
such a finding. The NYSDEC affirms
that no source within New York State is
the subject of an active finding under
CAA section 126 with respect to the
2015 Ozone NAAQS.
Section 115, entitled, ‘‘International
Air Pollution,’’ requires states to revise
SIPs under certain conditions to
alleviate international transport into
another country. The NYSDEC has
affirmed that there are no final findings
under CAA section 115 against New
York State with respect to the 2015
Ozone NAAQS.
New York’s SIP currently meets the
requirements of CAA sections 126 and
115 (relating to interstate and
international pollution abatement).
Therefore, the EPA is proposing to
approve the New York SIP as fully
meeting the requirements of CAA
section 110(a)(2)(D)(ii) for the 2015
Ozone NAAQS.
Element E: Adequate Resources:
Section 110(a)(2)(E) requires each state
to provide necessary assurances that the
state will: (i) Have adequate personnel,
funding, and authority under state law
to carry out the SIP (and is not
prohibited by any provision of federal or
state law from carrying out the SIP or
portion thereof), (ii) will comply with
the requirements respecting state boards
under CAA section 128, and (iii) where
the state has relied on a local or regional
government, agency, or instrumentality
for the implementation of any SIP
provision, the state has responsibility
for ensuring adequate implementation
of such SIP provision. This element of
the submittal is consistent with New
York infrastructure submittals that the
EPA has previously approved. See, e.g.,
78 FR 25236 (April 30, 2013) (proposal)
and 78 FR 37122 (June 20, 2013) (final
approval). The EPA proposes to approve
the New York submittal for meeting the
requirements of Section 110(a)(2)(E) for
the 2015 Ozone NAAQS.
In the 2015 Ozone ISIP submittal,
NYSDEC indicates that it receives both
operating and capital funding through
the federal and state government budget
processes. Operating funds are allocated
to DAR annually and are used for daily
administrative expenses, including
salaries, fringe benefits, and indirect as
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well as non-personnel services such as
travel, supplies, contracts, and
equipment costs. DAR is allocated
operating funds from the following
funding sources: General Fund,
Cooperative Agreements (i.e., EPA
sections 103 and 105 federal air
pollution control grants), and the Clean
Air Fund, which is comprised of the
Title V and Mobile Source accounts.
Capital funds may also be allocated to
DAR through the state government
budget process. They may be used for
the financing or acquisition of capital
facilities such as the construction of an
air monitoring site. DAR may be
allocated capital funds from three
sources: General Fund, Mobile Source
Account, and Rehabilitation and
Improvement.
In accordance with 40 CFR part 51
subpart O, ‘‘Miscellaneous Plan Content
Requirements,’’ NYSDEC receives state
and federal funding on a yearly basis.
State funding is part of the state
government budget process. Federal
funding comes in the form of grants
from EPA. Resources will be acquired at
the one-, three- and five-year intervals
from the same operating and capital
funding sources detailed above.
NYSDEC stated that, at the time of
proposal of this infrastructure SIP,
DAR’s operating budget is $33.3 million
dollars annually. The resources
considered necessary for the next five
years depend on negotiated labor union
contracts, inflation, indirect costs, and
fringe benefit rates determined by the
New York State Office of the State
Comptroller but will be no less than
33.4 million dollars annually. The
projections regarding acquiring
necessary resources depend on New
York State and federal budget processes,
especially for allocation of available
grant funds.
The NYSDEC addressed sub-element
(ii), concerning conflict of interest,
specifically the requirement to comply
with the requirements of CAA Section
128(a), in is 2015 Ozone ISIP
submission. With respect to the
requirement of CAA Section 128(a)(1),
the NYSDEC explains that New York
State has no board or body authorized
to approve permits or enforcement
orders under the CAA. With respect to
the requirements of CAA Section
128(a)(2), the NYSDEC explains that on
May 23, 2013 it submitted a copy of
Public Officers Law (POL) Section 73–
a, ‘‘Financial disclosure,’’ and 19
NYCRR Subpart 937.1(a), ‘‘Access to
Publicly Available Records,’’ and that
these provisions were incorporated into
the New York SIP for the limited
purpose of satisfying CAA section
128(a)(2). See, 78 FR 37122, 37122–
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37124 (June 20, 2013). EPA proposes to
find that the requirements of section
110(a)(2)(E)(ii) are therefore satisfied.
The NYSDEC has addressed CAA
section 110(a)(2)(E) sub-element (iii) by
referencing its ECL sections 19–0305,
71–2103, and 71–2105 and explaining
that these provisions authorize the
NYSDEC Commissioner to enforce the
codes, rules and regulations established
in accordance with Article 19 (Air
Pollution Control) and Article 71
(Enforcement). NYSDEC states that it
therefore has the authority to enforce all
approved SIP measures. NYSDEC
clarifies that it has the sole
responsibility for implementing the SIP,
and that even if it were to rely on a local
or regional government(s), it would
retain responsibility for ensuring
adequate implementation of the plan.
Finally, NYSDEC cites POL section 73–
a, ‘‘Financial disclosure,’’ and 19
NYCRR Part 937, ‘‘Access to Publicly
Available Records.’’ NYSDEC states that
EPA approved New York’s submissions
for the 1997 8-hour ozone and 1997 and
2006 PM2.5 NAAQS for sub-elements
110(a)(2)(E)(ii) and (iii) and that EPA
approved POL sections 73–a(2)(a)(i) and
(ii) and 19 NYCRR Subpart 937.1(a) into
the New York SIP for the limited
purpose of satisfying CAA section
128(a)(2). See 78 FR 37122–37124. EPA
proposes to find that the requirements
of 110(a)(2)(E)(iii) are satisfied.
The EPA proposes to approve the
New York submittal pursuant to section
110(a)(2)(E) with respect to the 2015
Ozone NAAQS based on the
demonstration of adequate resources
and authority.
Element F: Stationary Source
Monitoring and Reporting: Section
110(a)(2)(F) requires states to establish a
system to monitor emissions from
stationary sources and to submit
periodic emission reports. This element
of the submittal for the 2015 Ozone
NAAQS is similar to New York
infrastructure submittals that the EPA
has previously approved. To emphasize
the comprehensiveness of New York’s
reporting system, the three sub-elements
are described below.
Sub-Element (i)—Testing, Inspection,
Enforcement, and Compliance
Pursuant to ECL section 19–0305(2),
New York meets the requirement that
each SIP provide a program for periodic
testing and inspection of stationary
sources, to identify allowable test
methods, and to exclude any provision
that would prevent the use of credible
evidence of non-compliance. See 40
CFR 51.212. Moreover, 6 NYCRR
Subpart 201–1.13 gives the NYSDEC
access to regulated facilities, and 6
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NYCRR Subpart 202–1 requires facility
owners to conduct emissions tests
according to specific procedures,
provide notice to the NYSDEC in
advance of the testing, and allows the
NYSDEC to conduct separate emissions
tests. The NYSDEC uses the enforceable
test methods that are contained in 40
CFR part 51 Appendix M,
‘‘Recommended Test Methods for State
Implementation Plans.’’ Pursuant to 40
CFR 51.212(c), the NYSDEC has
certified that it does not preclude the
use, including the exclusive use, of
credible evidence or information
relevant to whether a source would have
been in compliance with applicable
requirements if the appropriate
performance or compliance test or
procedure had been performed.
Sub-Element (ii)—Requirements for
Periodic Reporting
The NYSDEC has authority to enforce
federal emissions reporting and recordkeeping regulations through ECL
Section 19–0311, ‘‘Operating permit
program for sources subject to the
federal Clean Air Act.’’ In particular,
ECL Section 19–0311 Subsection 3
provides requirements for detailed
monitoring, record-keeping, and
reporting, including that records be kept
for five years, and that monitoring
records be submitted to the NYSDEC at
least every six months. These
requirements are also contained in 6
NYCRR Subpart 201–6.2(d), which
requires that all Title V facility permit
applications provide for emissions
monitoring, record-keeping, and
reporting. In addition, major facility
owners must report annual emissions to
the NYSDEC pursuant to 6 NYCRR
Subpart 202–2, ‘‘Emission Statements.’’
Sub-Element (iii)—Stationary Source
Emission Inventories
This sub-element requires the
correlation of all state reports on
emissions from stationary sources. This
includes emission inventories based on
actual emissions submitted and
calculated through annual emission
statements from minor stationary
sources based on area sources.
Procedures Established by the EPA
The EPA’s Air Emissions Reporting
Requirements (AERR) were promulgated
in 2008, consolidating and streamlining
the requirements of several older rules
for states and local air pollution control
agencies to submit emissions
inventories for criteria pollutants to the
EPA’s Emissions Inventory System
(EIS). See 73 FR 76539 (December 17,
2008). The EPA uses these submissions,
along with other data sources (primarily
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35039
for air toxics), to build the National
Emissions Inventory (NEI).
The NYSDEC ensures compliance
with the AERR through several
regulations, including 6 NYCRR Section
201–5.3 (concerning facility permit
conditions, including record-keeping
and recording requirements), 6 NYCRR
Section 201–6.4 (requiring Title V
permits to incorporate all federal
reporting requirements), and 6 NYCRR
Subpart 202–2, ‘‘Emission Statements’’
(outlining emission reporting
requirements for major sources and
sources in ozone nonattainment areas
emitting at least 25 tons-per-year of NOX
or VOCs). The NYSDEC ensures that
records are available for public review
pursuant to 6 NYCRR Part 616, ‘‘Access
to Records.’’
The EPA proposes to approve the
New York submittal pursuant to Section
110(a)(2)(F) with respect to the 2015
Ozone NAAQS based on the
demonstration of adequate stationary
source monitoring and reporting.
Element G: Emergency power: Section
110(a)(2)(G) (Element G) requires states
to provide for emergency authority to
address activities causing imminent and
substantial endangerment to public
health and requires states to submit
adequate contingency plans to
implement the emergency episode
provisions in their SIPs.
The EPA requires that Infrastructure
SIP submittals 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.
Articles 3 and 19 of the ECL provide
New York State with the authority to
address air pollution emergencies. ECL
section 3–0301, entitled, ‘‘General
functions power and duties of the DEC
and the commissioner,’’ authorizes the
NYSDEC to prevent and control air
pollution emergencies as defined in ECL
section 1–0303. ECL articles 3 and 19
are implemented through 6 NYCRR part
207, ‘‘Control Measures for Air
Pollution Episodes,’’ which the EPA
approved as part of the New York SIP.
See 46 FR 55690 (November 12, 1981).
The EPA also notes that the NYSDEC
has implemented 6 NYCRR Part 207
through Air Pollution Episode
Procedures (APEPs), also called Alert
Criteria (updated December 2018 and
May 2019 at https://www.dec.ny.gov/
chemical/60440.html).
As stated in its supplemental
submittal dated July 10, 2019, the
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NYSDEC has revised the Air Quality
Index (AQI) reporting thresholds and
related priority levels pursuant to the
2015 Ozone NAAQS and other NAAQS
revisions to reflect 40 CFR part 58,
Appendix G, Table 2, ‘‘Breakpoints for
the AQI.’’ The NYSDEC also updated its
list of contacts and other relevant
information. The July 2019
supplemental submittal indicates that
the public was notified of the revisions
through publication in the
Environmental Notice Bulletin on May
22, 2019, and that no comments were
received on the proposed submittal.
The EPA proposes that New York has
met the requirements of section
110(a)(2)(G) for the 2015 Ozone
NAAQS.
Element H: Future SIP Revisions:
Section 110(a)(2)(H) requires states to
have authority to revise their SIPs in
response to changes in the NAAQS or
availability of improved methods for
attaining the NAAQS and whenever the
EPA finds that the SIP is substantially
inadequate. The EPA recognizes that the
following provisions of the ECL provide
the necessary authority for the NYSDEC
to revise a SIP and provide for
enforcement in response to revisions of
the NAAQS, the availability of
improved methods of attaining the
NAAQS, or in response to a finding by
the EPA that the SIP is substantially
inadequate:
• 3–0301, ‘‘General functions, powers
and duties of the department and the
commissioner;’’
• 19–0103, ‘‘Declaration of policy;’’
• 19–0301, ‘‘Powers and duties;’’
• 19–0303, ‘‘Codes, rules and
regulations;’’
• 19–0305, ‘‘Commissioner;
enforcement power;’’
• 71–2103, ‘‘Violations; civil
liability;’’ and
• 71–2105, ‘‘Criminal liability for
violations.’’
As the NYSDEC submittal explains,
Article 19 of the ECL was adopted to
protect New York’s air resources from
pollution and to effectuate the policy of
the state to maintain a reasonable degree
of purity of the air resources, consistent
with public health and welfare and the
industrial development of the state. To
this end, the state legislature gave
NYSDEC specific powers and duties,
including the power to promulgate and
revise regulations for preventing,
controlling, or prohibiting air pollution.
NYSDEC also has the specific authority
to regulate motor vehicle exhaust,
approve air contaminant control
systems, and regulate fuels.
The EPA proposes to find that the SIP
complies with the requirements of
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section 110(a)(2)(H) for the 2015 Ozone
NAAQS.
Element I: Plan Revisions for
Nonattainment Areas (under part D):
Section 110(a)(2)(I) provides that each
plan or plan revision for an area
designated as a nonattainment area shall
meet the applicable requirements of part
D of the CAA. EPA interprets section
110(a)(2)(I) to be inapplicable to the
infrastructure SIP process because
specific SIP submissions for designated
nonattainment areas, as required under
part D, are subject to a different
submission schedule under subparts 2
through 5 of part D, extending as far as
10 years following area designations for
some elements, whereas infrastructure
SIP submissions are due within three
years after adoption or revision of a
NAAQS. Accordingly, EPA takes action
on part D attainment plans through
separate processes.
Element J: Section 110(a)(2)(J):
Consultation with Government Officials,
Public Notification, and PSD and
Visibility Protection: Section 110(a)(2)(J)
mandates that plans meet the
requirements in CAA sections 121
(concerning consultation with
government officials), 127 (concerning
public notification), and Part C (relating
to PSD and visibility protection).
Consultation With Government Officials
CAA Section 110(a)(2)(J) requires
states to meet the applicable
requirements of CAA section 121
relating to consultation. CAA section
121 requires states to provide a
satisfactory process of consultation with
general purpose local governments,
designated organizations of elected
officials of local governments, Tribal
Nations, Federal Land Managers (FLMs),
and Regional Organizations.
Although there are no federal lands
within New York State to which the
state plan applies, the NYSDEC
participates in the consultation process
of the Regional Haze SIP with the FLMs,
states, and Tribes within the MidAtlantic/Northeast Visibility Union
(MANE/VU) and other regional
planning organizations, and has
committed to comply with 40 CFR
51.308 to provide FLMs an opportunity
to meaningfully inform the long-term
strategy.
On December 22, 2005, the NYSDEC
established a SIP Coordinating Council,
consisting of senior policy
representatives from 19 state agencies
and authorities, and a SIP Task Force,
consisting of officials from 37 local
governments and designated
organizations of elected officials. The
SIP Coordinating Council provides a
means to keep state agencies and local
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governments informed of planned SIP
activities and deadlines, and also
provides a forum for discussion of SIP
requirements and implications, such as
effects on transportation planning. The
SIP Task Force provides a means of
facilitating local involvement at the
Metropolitan Planning Organization
(MPO) and county levels. Periodic
meetings of both groups are convened as
necessary to address ozone SIP
development and nonattainment of the
ozone NAAQS and other revised
standards.
The EPA proposes to find that New
York has met the requirements of CAA
section 110(a)(2)(J) for consultation with
government officials.
Public Notification
CAA section 110(a)(2)(J) also requires
state plans to meet the public
notification requirements of CAA
section 127: to notify the public if
NAAQS are exceeded in an area, advise
the public of health hazards associated
with exceedances, and enhance public
awareness of measures that can be taken
to prevent exceedances and of ways in
which the public can participate in
regulatory and other efforts to improve
air quality.
Ozone concentrations that have
exceeded the 2015 Ozone NAAQS at
any monitor state-wide are reported on
the NYSDEC website, at https://
www.dec.ny.gov/chemical/38377.html.
Municipalities have emergencyresponse plans recommended by the
New York State Office of Emergency
Management and the Federal Emergency
Management Agency that provide for
public information and notification in
the case of large-scale emergencies.
The NYSDEC’s website at https://
www.dec.ny.gov/chemical/34985.html
contains an Air Quality Index (AQI) for
reporting daily air quality to the public.
It describes how clean or polluted the
air is and what associated health effects
might be a concern. The NYSDEC, in
cooperation with the New York State
Department of Health, posts warnings
on the above-referenced website and
issues press releases to local media
outlets if dangerous conditions are
expected to occur. These warnings are
also available on the NYSDEC’s toll-free
Air Quality Hotline at (800) 535–1345.
The Air Quality Index displays the
predicted AQI value for the eight
regions in New York State. It also
displays the observed values for the
previous day. Real-time monitoring data
are also available on an individual
monitor basis on the NYSDEC’s air
monitoring website. ‘‘Department of
Environmental Conservation Air
Monitoring website,’’ https://
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www.nyaqinow.net/. Air quality
measurements from New York’s
continuous monitoring network are
updated hourly where available.
Parameters monitored include ozone,
fine particulate, carbon monoxide,
sulfur dioxide, nitrogen oxides,
methane/hydrocarbons, and
meteorological data. The NYSDEC also
provides ozone-specific information on
its website, including the health-related
effects of ozone pollution, at https://
www.dec.ny.gov/chemical/8400.html. It
also includes general measures the
public can take to help reduce the
formation of ozone, at https://
www.dec.ny.gov/chemical/8554.html.
As described in the New York State
Administrative Procedure Act (APA),
and as required by 40 CFR 51.102, the
NYSDEC must provide appropriate
notice of each major SIP revision, and
the public is afforded the opportunity to
participate in the regulatory process by
submitting written comments and
petitioning for a public hearing on such
revisions.
The EPA proposes to find that New
York has met the requirements of CAA
section 110(a)(2)(J) for public
notification.
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Prevention of Significant Deterioration
As detailed in the discussion of
Element C, above, New York has a SIPapproved PSD/NSR program that covers
all criteria pollutants and greenhouse
gases, including ozone, which is
contained in 6 NYCRR Part 231, ‘‘New
Source Review for New and Modified
Facilities,’’ and which was approved by
the EPA on November 17, 2010 (75 FR
70142). 6 NYCRR Part 231 regulates
major sources under NSR (when the
source is located in a nonattainment
area) and PSD (when the source is
located in an attainment area).
The EPA proposes to approve New
York’s infrastructure SIP with respect to
the requirements of the PSD subelement of CAA section 110(a)(2)(J).
Visibility Protection
Visibility Protection and regional haze
program requirements under section
169A and B of Part C are being met by
the NYSDEC through separate efforts. In
the event of the establishment of a new
NAAQS, the visibility and regional haze
program requirements under Part C do
not change. As noted in the EPA’s 2013
guidance, we find that there is no new
visibility obligation triggered under
section 110(a)(2)(J) when a new NAAQS
becomes effective. There are thus no
new applicable visibility protection
obligations under section 110(a)(2)(J)
resulting from the 2015 Ozone NAAQS
revision, and the EPA is therefore not
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acting on the visibility aspect of
Element J.
Element K: Air Quality Modeling/
Data: Section 110(a)(2)(K) requires that
SIPs provide for air quality modeling for
predicting effects on air quality of
emissions from any NAAQS pollutant
and submission of such data to the EPA
upon request. The infrastructure SIP
submittal affirms that the modeling
procedures are in accordance with 40
CFR part 51, Appendix W, also known
as the Guideline on Air Quality Models.
The NYSDEC submittal cites 6 NYCRR
Part 200.6, which defines ‘‘Acceptable
ambient air quality,’’ in support of its
position that ‘‘when a new major source
of emissions is coming online or an
existing source is undertaking a
modification that would lead to a
significant increase in its potential to
emit, NYSDEC will use modeling as
necessary to affirm that compliance
with the ozone NAAQS will be
maintained.’’ The submittal also cites 6
NYCRR 231–12, ‘‘Ambient Air Quality
Impact Analysis,’’ which sets forth the
procedures and requirements for an air
quality impact analysis. The NYSDEC
submittal certifies that air quality
modeling and analysis complies with
the latest EPA guidance on the use of
models in attainment demonstrations,
and commits to continue to use air
quality models in accordance with
EPA’s approved modeling guidance and
to submit data to the Administrator if
requested.
Element L: Permitting Fees: Section
110(a)(2)(L) requires SIPs to mandate
that each major stationary source pay
permitting fees to cover the cost of
reviewing, approving, implementing,
and enforcing a permit, until such time
as the SIP fee requirement is superseded
by the EPA’s approval of the state’s
operating permit program. New York
has an approved Title V operating
permit program. 67 FR 5216 (February
5, 2002); see also 66 FR 63180 (Dec. 5.
2001); 61 FR 57589 (Nov. 7, 1996). The
NYSDEC submittal identifies the
following statutory and regulatory
provisions that provide for the
collection of permitting fees: ECL
section 72–0302, ‘‘State air quality
control fees’’ states that those who are
required to obtain a permit, certificate or
approval must submit to NYSDEC a per
emission point fee; ECL section 72–
0303, ‘‘Operating permit program fees,’’
establishes a base fee; 6 NYCRR subpart
482–2, as revised effective June 17,
2018, and promulgated pursuant to the
statutory authority granted to NYSDEC
under ECL 72–0303, establishes an
annual fee; and 6 NYCRR subpart 201–
6.4(a)(7) which provides that the owner
and/or operator of a stationary source
PO 00000
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Fmt 4702
Sfmt 4702
35041
will pay the fees to NYSDEC consistent
with the fee schedule established in 6
NYCRR subpart 482–2. The EPA is
proposing to approve this Element.6
Element M: Consultation/
Participation by Affected Local Entities:
Section 110(a)(2)(M) requires states to
provide for consultation and
participation in SIP development by
local political subdivisions affected by
the SIP.
The submittal provides information
regarding the NYSDEC’s authority to
provide for consultation and
participation in SIP development, in
support of the EPA’s proposed approval
of this element. The submittal identifies
the SIP Task Force, consisting of
officials from 37 local governments and
designated organizations of elected
officials, which the NYSDEC utilizes as
necessary for consultation on plans.
Participation by local entities, as well as
the public, is provided through 6
NYCRR Part 617, ‘‘State Environmental
Quality Review.’’
VIII. What action is the EPA taking?
In summary, the EPA is proposing
approval of the following elements and
sub-elements of New York’s
Infrastructure SIP submittal for 2015
Ozone NAAQS: Section 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 and for construction or
modification of stationary sources];
110(a)(2)(D) [interstate pollution
transport (sub-elements addressing PSD,
visibility, and interstate and
international pollution abatement
only)]; 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 officials, public
notification, and PSD]; 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].
As previously stated, this proposed
action does not address the section
110(a)(2)(D)(i)(I) (prongs 1 and 2)
portions of the New York 2015 Ozone
infrastructure SIP. The EPA will act on
these portions of New York’s
infrastructure SIP in a separate
rulemaking action. For the reasons
6 Due to State revisions to 6 NYCRR 201–6,
section 201–6.5(a)(7) in the EPA-approved New
York Title V program is now numbered in the
State’s regulation as 6 NYCRR 201–6.4(a)(7).
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35042
Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
provided in the discussion above,
Element I and the visibility aspect of
Element J are not being addressed.
The EPA is soliciting public
comments on the issues discussed in
this proposal. These comments will be
considered before the EPA takes final
action. Interested parties may
participate in the federal rulemaking
procedure by submitting comments
electronically following the directions
in the ADDRESSES section of this Federal
Register.
khammond on DSKJM1Z7X2PROD with PROPOSALS
IX. 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 Orders 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
this action does not involve technical
standards; and
VerDate Sep<11>2014
16:17 Jun 30, 2021
Jkt 253001
• Does not provide the EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629 (February 16, 1994)).
This proposed rulemaking pertaining
to New York’s section 110(a)(2)
infrastructure requirements for the 2015
Ozone NAAQS is not approved to apply
on any Indian reservation land or in any
other area where the EPA or an Indian
tribe has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the proposed rule does not
have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (see
65 FR 67249 (November 9, 2000)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone, Reporting and recordkeeping
requirements, Volatile organic
compounds, Nitrogen oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 23, 2021.
Walter Mugdan,
Acting Regional Administrator, EPA Region
2.
[FR Doc. 2021–14057 Filed 6–30–21; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R02–OAR–2020–0466, FRL 10025–61–
Region 2]
Approval of Air Quality Implementation
Plans; New York; Part 212, Process
Operations
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the New York State
Implementation Plan concerning
process operations. The intended effect
of this revision is to streamline and
update provisions, align those
provisions with permitting regulations,
and provide regulatory certainly for the
regulated community. New York’s
comprehensive submittal also included
Operating Permit Program requirements;
however, the EPA will be acting on
these revisions under a separate action.
DATES: Comments must be received on
or before August 2, 2021.
SUMMARY:
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Fmt 4702
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Submit your comments,
identified by Docket ID number EPA–
R02–OAR–2020–0466, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or withdrawn. The EPA may
publish any comment received to its
public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. The EPA will
generally not consider comments or
comment contents located outside of the
primary submission (i.e., on the web,
cloud, or other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Marina Cubias-Castro, Air Programs
Branch, Environmental Protection
Agency, Region 2, 290 Broadway, 25th
Floor, New York, New York 10007–
1866, (212) 637–3713, or by email at
castro.marina@epa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Table of Contents
I. Background
II. EPA’s Evaluation of New York’s Submittal
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background
The Environmental Protection Agency
(EPA) proposes to approve New York’s
State Implementation Plan (SIP)
submittal consisting of revisions to Title
6 of the New York Codes, Rules and
Regulations (6 NYCRR) Part 212, now
entitled, ‘‘Process Operations,’’ which
applies to process emission sources
and/or emission points associated with
a process operation, and which will
streamline and update provisions, align
those provisions with permitting
regulations, and provide regulatory
certainly for the regulated community.
In addition, attendant revisions were
made to 6 NYCRR Part 200, ‘‘General
Provisions,’’ in order to add a new
Subdivision (cy) to define
‘‘Polychlorinated Dibenzo-para-dioxins
and Polychlorinated Dibenzofurans’’ to
Section 200.1. The EPA is proposing to
approve these revisions, requested by
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]]>Agencies
[Federal Register Volume 86, Number 124 (Thursday, July 1, 2021)]
[Proposed Rules]
[Pages 35034-35042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14057]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2020-0301; FRL 10025-51-Region 2]
Approval of Air Quality Implementation Plans; New York;
Infrastructure Requirements for the 2015 Ozone, National Air Quality
Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of New York's State Implementation Plan (SIP)
revisions, submitted to demonstrate that the State meets the
requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA)
for the 2015 Ozone 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: Comments must be received on or before August 2, 2021.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2020-0301 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets. To reduce the risk of
COVID-19 transmission, for this action we will not be accepting
comments submitted by mail or hand delivery.
All documents in the docket are listed on the www.regulations.gov
website. 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, is not placed on the internet. Publicly available docket
materials are available electronically at www.regulations.gov. To
reduce the transmission of COVID-19, we do not plan to offer hard-copy
review of the docket for this action. Please email the person listed in
the FOR FURTHER INFORMATION CONTACT if you need to make alternative
arrangements for access to the docket.
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 the EPA proposing?
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 the 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 action is the EPA taking?
IX. Statutory and Executive Order Reviews
I. What action is the EPA proposing?
The EPA is proposing to approve elements of the State of New York
Infrastructure State Implementation Plan (SIP) as meeting the section
110(a)(1) and (2) infrastructure requirements of the Clean Air Act
(CAA) for the 2015 Ozone National Ambient Air Quality Standards (NAAQS
or standard), except for the CAA section 110(2)(D)(i)(I) transport
provisions which will be addressed in a separate action. As explained
below, the EPA is proposing to find that the State has the necessary
infrastructure, resources, and general authority to implement the
standards noted above.
[[Page 35035]]
II. What is the background information?
Section 110(a)(1) of the CAA requires states to submit for approval
into the SIP, within 3 years after the promulgation of a new or revised
NAAQS, a plan that meets the applicable requirements of section
110(a)(2). The EPA commonly refers to such state plans as
``infrastructure SIPs.'' The EPA promulgated a revised NAAQS for ozone
in 2015 (``2015 Ozone''). 80 FR 65291 (October 26, 2015).
The New York State Department of Environmental Conservation
(NYSDEC) submitted the following revisions to its Infrastructure State
Implementation Plan (ISIP):
2015 Ozone ISIP submitted on September 25, 2018.
The September 25, 2018 transmittal letter indicated that
NYSDEC would be updating Element G, which includes updates to the Air
Quality Index and Emergency Contract.
The updated Element G was received, along with a letter to
EPA Regional Administrator Peter D. Lopez on July 10, 2019, and is
incorporated into this assessment by the EPA (which, together with the
September 25, 2018 submittal, is referred to herein as the
``submittal'').
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 ensure 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: (1) The 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;'' (2) the EPA's 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),
which addresses the 2008 ozone, 2010 nitrogen dioxide (NO2),
2010 sulfur dioxide (SO2), and 2012 particulate matter
(PM2.5) NAAQS, as well as infrastructure SIPs for new or
revised NAAQS promulgated in the future.\1\
---------------------------------------------------------------------------
\1\ All referenced memoranda are included in the docket for
today's action.
---------------------------------------------------------------------------
The EPA reviews each infrastructure SIP submission with the
applicable statutory provisions of CAA section 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.
This proposed action will not address the section
110(a)(2)(D)(i)(I) (prongs 1 and 2) portions of the New York 2015 Ozone
infrastructure SIP. The EPA will act on those portions of New York's
infrastructure SIP in a separate rulemaking action.
V. What is the EPA's approach to the review of infrastructure SIP
submissions?
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 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.\2\ 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.\3\ The EPA has other authority to address
issues concerning a state's implementation of its SIP.
---------------------------------------------------------------------------
\2\ The 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 the EPA's
prior action on New York's infrastructure SIP to address the
Nitrogen Dioxide NAAQS, 79 FR 25066, 25067 (May 2, 2014).
\3\ See the United States Court of Appeals for the Ninth
Circuit's 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:
2015 Ozone ISIP Revisions, submitted on September 25,
2018.
2015 Ozone ISIP Element G, submitted in a July 10, 2019
letter to Region 2 EPA Regional Administrator, Peter D. Lopez,
entitled, ``Revisions to Air Quality Index and Contacts'' (which,
together with the September 25, 2018 submittal, is referred to herein
as the ``submittal'').
New York's Infrastructure SIP submittal demonstrates how the State,
where applicable, has a plan in place that meets the requirements of
section 110 for the 2015 Ozone NAAQS. The plan references the current
New York Air Quality SIP, the New York Codes, Rules and Regulations
(NYCRR), the New York Environmental Conservation
[[Page 35036]]
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?
EPA addresses the infrastructure elements as follows:
Element A: Emission Limits and Other Control Measures: Section
110(a)(2)(A) requires SIPs to include enforceable emission limits and
other control measures, means, or techniques, and schedules for
compliance. In its submittal, the NYSDEC stated that regulations have
been adopted under 6 NYCRR to limit emissions of nitrogen oxides
(NOX) and volatile organic compound (VOC) for purposes of
attaining several ozone NAAQS. Regulations approved by EPA into the SIP
are listed in a table under 40 CFR 52.1670(c), titled ``EPA-Approved
New York State Regulations and Laws.'' The NYSDEC submittal indicates
that DEC's November 10, 2017 SIP submission for the New York-Northern
New Jersey-Long Island, NY-NJ-CT nonattainment area (New York
metropolitan area, or NYMA) for the 2008 ozone NAAQS identified the
permanent and enforceable regulations that primarily yielded reductions
of NOX and VOC emissions.\4\ In its submittal, New York
identifies provisions of its federally enforceable SIP that contain
enforceable emission limits and other control measures, such as 6 NYCRR
subpart 201-1.4(a), which states that each permitted facility shall
take all necessary and appropriate actions to prevent exceedance of
applicable emissions limits during periods of start-up, shutdown, or
malfunction. Moreover, the NYSDEC's submittal states that it does not
authorize any ``director's variance'' or ``director's discretion'' to
allow revisions to or exemptions from SIP submission limitations
without further public participation and approval from the EPA.
---------------------------------------------------------------------------
\4\ https://www.dec.ny.gov/docs/air_pdf/sip2008o3nymafinal.pdf.
---------------------------------------------------------------------------
The SIP submittal does not account for additional NOX
and VOC control measures needed to attain the 2015 Ozone NAAQS. NYSDEC
stated in its submission that these control measures will be addressed
in the New York metropolitan area's (``NYMA'') attainment SIP that is
due by August 3, 2021.
The EPA is proposing to determine that New York has met the
requirements of section 110(a)(2)(A) of the CAA with respect to the
2015 Ozone NAAQS based on the enforceable emission limits and other
control measures in Title 6 of the NYCRR.
Element B: Ambient air quality monitoring/data system: Section
110(a)(2)(B) requires SIPs to include provisions to provide for the
establishment and operation of ambient air quality monitors, to
monitor, compile, and analyze ambient air quality data, and to make
these data available to the EPA upon request. The NYSDEC submittal for
the 2015 Ozone ISIP details the State's authority to adopt and enforce
provisions of the SIP and to operate an ambient air quality monitoring
network. The EPA proposes to find that these provisions demonstrate
that NYSDEC has the requisite authority to support Element B. NYSDEC
states that it will continue to operate an air quality monitoring
network that complies with the EPA requirements and will submit this
data to the EPA's Air Quality System (AQS). NYSDEC's submittal states
that it monitors ozone at 28 sites across the State using continuous
and/or manual instrumentation, in accordance with 40 CFR part 53 and 40
CFR part 58. These sites are part of the federally mandated network of
NCore multipollutant sites (NCore), the State and Local Air Monitoring
Stations (SLAMS) network, and Photochemical Assessment Monitoring
Stations (PAMS), with additional VOC monitoring conducted through the
EPA's National Ambient Air Toxics (NATTS) network.
Authority: New York's 2015 Ozone ISIP submittal states that while
the NYSDEC does not have specific regulations authorizing monitoring
activities, the operation of monitoring networks falls under the broad
statutory authority granted to the agency and the Commissioner of the
NYSDEC through New York's Environmental Conservation Law (ECL) section
1-0101 (declaring New York's policy to prevent air, water and land
pollution), section 3-0301 (granting the NYSDEC Commissioner the power
to monitor the environment and identify changes and conditions in
ecological systems and to warn of emergency conditions), and section
19-0103 (declaring New York's policy to maintain a reasonable degree of
purity of the air resources of the state and require the use of all
available practical and reasonable methods to prevent and control air
pollution in New York).
Monitoring network:
The NYSDEC operates API-T400 ozone monitors at 28 sites across the
State. In addition to monitoring for ozone, the monitoring sites also
monitor for ozone precursors (NOX and VOCs). The EPA's
promulgation of the 2015 Ozone NAAQS altered PAMS requirements. The new
rule requires that PAMS stations be located at urban sites with
populations of greater than one million people regardless of attainment
status. To comply with PAMS requirements, sites were originally
established in Queens County (NYC) and Monroe County (Rochester). These
two PAMS sites have been relocated with the EPA's approval. The Queens
site was relocated to an existing PAMS site in the Bronx (NYC), and the
Rochester site was relocated to a new site at the Flax Pond Marine
Laboratory in Suffolk County on the Long Island Sound. The Flax Pond
Marine Laboratory site will assist in monitoring the high ozone
gradient across Long Island Sound.
Annual Monitoring Network Plan:
The NYSDEC prepares an Annual Monitoring Network Plan (Plan) that
describes in detail the specifics of the monitoring network as required
by 40 CFR Section 58.10. The Plan is made available for public
inspection and comment for at least 30 days and then submitted to the
EPA Region 2 Regional Administrator for approval or disapproval. The
2020 Plan was submitted to the EPA on September 23, 2020, following
public review, and the EPA approved all Ozone related monitoring
activities on January 11, 2021. The NYSDEC ensures that New York will
meet the monitoring requirements promulgated under the 2015 Ozone
NAAQS.
The EPA is therefore proposing that New York has met the
requirements of section 110(a)(2)(B) of the CAA with respect to the
2015 Ozone NAAQS based on the authority provided by the ECL and the
operation of an EPA-approved ambient air monitoring network.
Element C: Program for enforcement of control measures and for
construction or modification of stationary sources: 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. The
[[Page 35037]]
three sub-elements of Element C are addressed below.
Enforcement of SIP Measures:
Statewide enforcement of new and modified sources, minor
modifications of minor sources, and major modifications in areas
designated as an attainment area or as an unclassifiable area for the
2015 Ozone NAAQS, is required by Title I of the Clean Air Act Part C
(Major Sources of Prevention of Significant Deterioration). ECL section
19-0305 authorizes the NYSDEC Commissioner to enforce the codes,
regulations, and rules duly promulgated or revised by the NYSDEC in
accordance with Article 19 of the ECL. The New York federally approved
SIP is a compilation of rules and procedures that have been duly
promulgated by the NYSDEC in accordance with its statutory authority
and consistent with the State APA. The NYSDEC has the authority to
adopt all SIP measures. New York enforces emission limits and control
measures through Title 21 of ECL article 71, ``Enforcement of Article
19 and Air Pollution Emergency Rules and Regulations.'' 6 NYCRR part
201, entitled, ``Permits and Regulations'' also includes enforcement
provisions. Specifically, subpart 201-1.13, entitled, ``access to
regulated facilities,'' grants representatives of the NYSDEC access in
order to determine compliance with federal and state air pollution
requirements, regulations or laws.
Regulation of minor sources and minor modifications:
The NYSDEC issues permits for minor sources of air pollution
through 6 NYCRR Subpart 201-4 (``Minor Facility Registration'') and
Subpart 201-5 (``State Facility Permits''), and further regulates these
sources through applicable state and federal regulations, including the
SIP-approved 6 NYCRR Part 201, in order to control emissions of
NOX and VOCs.
Preconstruction PSD Permitting of Major Sources and Major
Modifications:
The NYSDEC has permitting authority under 6 NYCRR Part 231, ``New
Source Review for New and Modified Facilities'' to implement the PSD
program as required by the CAA Title 1 Part C for all sources subject
to PSD in areas designated as in attainment or unclassifiable for the
2015 Ozone NAAQS. Part 231 of 6 NYCRR was revised in 2009 to comply
with federal guidelines. This revision allowed the NYSDEC to resume
administering the PSD program, which includes criteria pollutants
(i.e., all pollutants subject to a NAAQS, regulated under a New Source
Performance Standard, or regulated under the CAA, with the exception of
Section 112 Hazardous Air Pollutants), which had been administered by
the EPA since 2004. See 75 FR 70140 (Nov. 17, 2010).
6 NYCRR Part 231 also encompasses the regulation of greenhouse
gases. The EPA approved the majority of this revised regulation into
the New York SIP. (see 81 FR 95047 (Dec. 27, 2016)).
New York's 2015 Ozone ISIP submittal states that all applicable
federal PSD requirements that are included in PSD permits are
incorporated into Title V operating permits, and that all federally
enforceable requirements are applied and enforced. In its submittal,
New York affirms that the current NSR and PSD programs remain in effect
and apply to the State's major stationary sources, and that the
requirements of these programs are federally enforceable.
The EPA is proposing to determine that New York has met the
requirements of section 110(a)(2)(C) of the CAA with respect to the
2015 Ozone NAAQS. The EPA proposes to find that the State has adequate
authority and regulations to ensure that SIP-approved control measures
are enforced. The EPA is proposing to find that New York has a SIP-
approved minor new source review program. The EPA also proposes to
find, based on the approval of New York's PSD program, that New York
has the authority to regulate the construction of new or modified
stationary sources to meet the PSD program requirements.
Element D: Interstate transport: CAA section 110(a)(2)(D)(i)
consists of four separate elements, or ``prongs.'' CAA section
110(a)(2)(D)(i)(I) requires SIPs to contain adequate provisions
prohibiting emissions in amounts that will contribute significantly to
nonattainment of the NAAQS in any other state (prong 1), and adequate
provisions prohibiting emissions that will interfere with maintenance
of the NAAQS by any other state (prong 2). CAA section
110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions
prohibiting emissions in amounts that will interfere with any other
state's required measures to prevent significant deterioration of its
air quality (prong 3), and adequate provisions prohibiting emissions in
amounts that will interfere with any other state's required measures to
protect visibility (prong 4).
Prongs 1 and 2: Significant Contribution To Attainment and Interference
With Maintenance
This proposed action will not address the portions of the New York
2015 Ozone infrastructure SIP concerning prongs 1 and 2. The EPA will
act on these portions of New York's infrastructure SIP in a separate
rulemaking action.
Prong 3: Interference With PSD
Under section 110(a)(2)(D)(i)(II) (prong 3), SIPs must contain
provisions prohibiting emissions in amounts that would interfere with
measures required to be in any other State's SIP under CAA Part C to
prevent the significant deterioration of air quality. To satisfy
section 110(a)(2)(D)(i)(II), New York relies on its SIP-approved
nonattainment NSR and PSD permitting programs, which are implemented
through 6 NYCRR Part 231 to prevent significant deterioration of air
quality within the state and other nearby states. New York has affirmed
that new major sources and major modifications in New York are subject
to the State's federally approved PSD program, which applies to all
NSR-regulated pollutants, and satisfies the EPA's PSD requirements.
The EPA recognizes that sources in New York not subject to PSD
because they are in a nonattainment area may also have the potential to
interfere with PSD in an attainment or unclassifiable area of another
state. The EPA will consider and may approve nonattainment NSR
provisions in determining whether a SIP satisfies prong 3 with respect
to sources located in areas subject to nonattainment NSR, and thus not
subject to PSD permitting. However, SIP revisions to address
nonattainment NSR requirements for any new or revised NAAQS are due on
a separate timeframe under section 172(b) of the CAA and are not
subject to the timeframe for submission of infrastructure SIPs under
section 110(a)(1). Therefore, a fully approved nonattainment NSR
program for any previous NAAQS may be considered by the EPA as adequate
for purposes of meeting the requirement of prong 3. New York has a SIP-
approved nonattainment NSR program that applies to all NSR-regulated
pollutants, ensuring regulation of major sources and major
modifications in nonattainment areas.
Accordingly, the EPA is proposing to approve the infrastructure SIP
submission as meeting the applicable prong 3 requirements of section
110(a)(2)(D)(i)(II) for the 2015 Ozone NAAQS.
Prong 4: Visibility
In its 2015 Ozone ISIP submittal, New York has affirmed that the
State has met its visibility obligations through its coordination with
regional Class I area states within the framework of the Mid-Atlantic/
Northeast Visibility Union (MANE-VU), and its applicable SIP
[[Page 35038]]
submissions, including its EPA-approved Regional Haze SIP, as well as
SIP provisions that replaced a Federal Implementation Plan (FIP) for
the Danskammer and Roseton Generating Stations. On August 28, 2012, the
EPA approved New York's Regional Haze SIP submittal as part of New
York's SIP (see 77 FR 51915).\5\
---------------------------------------------------------------------------
\5\ In the August 28, 2012 rulemaking approving New York's
Regional Haze SIP submittal, the EPA promulgated a partial FIP to
address our disapproval of New York's Best Available Retrofit (BART)
determinations for the Roseton Generating Station's Unit's 1 and 2
and Danskammer Generating Station's Unit 4. See 77 FR 51915 (August
28, 2012). The emission reductions under the FIP were not necessary
to demonstrate that New York met its share of the emissions
reductions needed to meet reasonable progress goals (found at 40 CFR
51.308(d)(1)) at Class I areas affected by New York's emissions. The
EPA fully approved that aspect of New York's Regional Haze SIP in
the August 2012 rulemaking. See 77 FR 51915. The FIPs for Danskammer
and Roseton have subsequently been replaced by SIP provisions
approved by the EPA for Danskammer (82 FR 57126 (December 14, 2017))
and Roseton (83 FR 6970 (February 16, 2018)).
---------------------------------------------------------------------------
In New York's 2015 Ozone ISIP submittal, it noted that the five-
year progress report SIP that it submitted on June 16, 2015 (and
subsequently approved by EPA on September 29, 2017 (see 82 FR 45499))
demonstrates that New York continues to meet its obligations to reduce
visibility-impairing pollutants.
The EPA is proposing that New York satisfies the section
110(a)(2)(D)(i)(II) requirement for visibility (or prong 4). New York
addresses the visibility protection requirements for the 2015 Ozone
NAAQS through its Regional Haze SIP, which ensures that emissions from
sources within the State are not interfering with measures to protect
visibility in other states.
110(a)(2)(D)(ii): Interstate Pollution Abatement and International
Transport Provisions
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring compliance with the applicable requirements of CAA sections
126 and 115 (relating to interstate and international pollution
abatement). In assessing CAA section 110(a)(2)(D)(ii), we reviewed the
information presented by New York in its 2015 Ozone infrastructure SIP
submission, as well as relevant portions of the EPA-approved New York
SIP.
Section 126(a) requires that SIPs mandate that new (or modified)
major sources subject to PSD notify neighboring States of potential air
pollution impacts. New York indicates that it has addressed this
requirement through 6 NYCRR Paragraph 201-6.3(b)(1), which states:
``The department shall give notice of each draft permit to any affected
state on or before the time that the department provides this notice to
the public under the requirements of this Part or Part 621 of this
Title.''
Section 126(b) allows states to petition the EPA Administrator for
a finding that a source or group of sources interferes with its ability
to attain or maintain the NAAQS in violation of section
110(a)(2)(D)(i), and section 126(c) discusses violations as a result of
such a finding. The NYSDEC affirms that no source within New York State
is the subject of an active finding under CAA section 126 with respect
to the 2015 Ozone NAAQS.
Section 115, entitled, ``International Air Pollution,'' requires
states to revise SIPs under certain conditions to alleviate
international transport into another country. The NYSDEC has affirmed
that there are no final findings under CAA section 115 against New York
State with respect to the 2015 Ozone NAAQS.
New York's SIP currently meets the requirements of CAA sections 126
and 115 (relating to interstate and international pollution abatement).
Therefore, the EPA is proposing to approve the New York SIP as fully
meeting the requirements of CAA section 110(a)(2)(D)(ii) for the 2015
Ozone NAAQS.
Element E: Adequate Resources: Section 110(a)(2)(E) requires each
state to provide necessary assurances that the state will: (i) Have
adequate personnel, funding, and authority under state law to carry out
the SIP (and is not prohibited by any provision of federal or state law
from carrying out the SIP or portion thereof), (ii) will comply with
the requirements respecting state boards under CAA section 128, and
(iii) where the state has relied on a local or regional government,
agency, or instrumentality for the implementation of any SIP provision,
the state has responsibility for ensuring adequate implementation of
such SIP provision. This element of the submittal is consistent with
New York infrastructure submittals that the EPA has previously
approved. See, e.g., 78 FR 25236 (April 30, 2013) (proposal) and 78 FR
37122 (June 20, 2013) (final approval). The EPA proposes to approve the
New York submittal for meeting the requirements of Section 110(a)(2)(E)
for the 2015 Ozone NAAQS.
In the 2015 Ozone ISIP submittal, NYSDEC indicates that it receives
both operating and capital funding through the federal and state
government budget processes. Operating funds are allocated to DAR
annually and are used for daily administrative expenses, including
salaries, fringe benefits, and indirect as well as non-personnel
services such as travel, supplies, contracts, and equipment costs. DAR
is allocated operating funds from the following funding sources:
General Fund, Cooperative Agreements (i.e., EPA sections 103 and 105
federal air pollution control grants), and the Clean Air Fund, which is
comprised of the Title V and Mobile Source accounts.
Capital funds may also be allocated to DAR through the state
government budget process. They may be used for the financing or
acquisition of capital facilities such as the construction of an air
monitoring site. DAR may be allocated capital funds from three sources:
General Fund, Mobile Source Account, and Rehabilitation and
Improvement.
In accordance with 40 CFR part 51 subpart O, ``Miscellaneous Plan
Content Requirements,'' NYSDEC receives state and federal funding on a
yearly basis. State funding is part of the state government budget
process. Federal funding comes in the form of grants from EPA.
Resources will be acquired at the one-, three- and five-year intervals
from the same operating and capital funding sources detailed above.
NYSDEC stated that, at the time of proposal of this infrastructure
SIP, DAR's operating budget is $33.3 million dollars annually. The
resources considered necessary for the next five years depend on
negotiated labor union contracts, inflation, indirect costs, and fringe
benefit rates determined by the New York State Office of the State
Comptroller but will be no less than 33.4 million dollars annually. The
projections regarding acquiring necessary resources depend on New York
State and federal budget processes, especially for allocation of
available grant funds.
The NYSDEC addressed sub-element (ii), concerning conflict of
interest, specifically the requirement to comply with the requirements
of CAA Section 128(a), in is 2015 Ozone ISIP submission. With respect
to the requirement of CAA Section 128(a)(1), the NYSDEC explains that
New York State has no board or body authorized to approve permits or
enforcement orders under the CAA. With respect to the requirements of
CAA Section 128(a)(2), the NYSDEC explains that on May 23, 2013 it
submitted a copy of Public Officers Law (POL) Section 73-a, ``Financial
disclosure,'' and 19 NYCRR Subpart 937.1(a), ``Access to Publicly
Available Records,'' and that these provisions were incorporated into
the New York SIP for the limited purpose of satisfying CAA section
128(a)(2). See, 78 FR 37122, 37122-
[[Page 35039]]
37124 (June 20, 2013). EPA proposes to find that the requirements of
section 110(a)(2)(E)(ii) are therefore satisfied.
The NYSDEC has addressed CAA section 110(a)(2)(E) sub-element (iii)
by referencing its ECL sections 19-0305, 71-2103, and 71-2105 and
explaining that these provisions authorize the NYSDEC Commissioner to
enforce the codes, rules and regulations established in accordance with
Article 19 (Air Pollution Control) and Article 71 (Enforcement). NYSDEC
states that it therefore has the authority to enforce all approved SIP
measures. NYSDEC clarifies that it has the sole responsibility for
implementing the SIP, and that even if it were to rely on a local or
regional government(s), it would retain responsibility for ensuring
adequate implementation of the plan. Finally, NYSDEC cites POL section
73-a, ``Financial disclosure,'' and 19 NYCRR Part 937, ``Access to
Publicly Available Records.'' NYSDEC states that EPA approved New
York's submissions for the 1997 8-hour ozone and 1997 and 2006
PM2.5 NAAQS for sub-elements 110(a)(2)(E)(ii) and (iii) and
that EPA approved POL sections 73-a(2)(a)(i) and (ii) and 19 NYCRR
Subpart 937.1(a) into the New York SIP for the limited purpose of
satisfying CAA section 128(a)(2). See 78 FR 37122-37124. EPA proposes
to find that the requirements of 110(a)(2)(E)(iii) are satisfied.
The EPA proposes to approve the New York submittal pursuant to
section 110(a)(2)(E) with respect to the 2015 Ozone NAAQS based on the
demonstration of adequate resources and authority.
Element F: Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires states to establish a system to monitor emissions
from stationary sources and to submit periodic emission reports. This
element of the submittal for the 2015 Ozone NAAQS is similar to New
York infrastructure submittals that the EPA has previously approved. To
emphasize the comprehensiveness of New York's reporting system, the
three sub-elements are described below.
Sub-Element (i)--Testing, Inspection, Enforcement, and Compliance
Pursuant to ECL section 19-0305(2), New York meets the requirement
that each SIP provide a program for periodic testing and inspection of
stationary sources, to identify allowable test methods, and to exclude
any provision that would prevent the use of credible evidence of non-
compliance. See 40 CFR 51.212. Moreover, 6 NYCRR Subpart 201-1.13 gives
the NYSDEC access to regulated facilities, and 6 NYCRR Subpart 202-1
requires facility owners to conduct emissions tests according to
specific procedures, provide notice to the NYSDEC in advance of the
testing, and allows the NYSDEC to conduct separate emissions tests. The
NYSDEC uses the enforceable test methods that are contained in 40 CFR
part 51 Appendix M, ``Recommended Test Methods for State Implementation
Plans.'' Pursuant to 40 CFR 51.212(c), the NYSDEC has certified that it
does not preclude the use, including the exclusive use, of credible
evidence or information relevant to whether a source would have been in
compliance with applicable requirements if the appropriate performance
or compliance test or procedure had been performed.
Sub-Element (ii)--Requirements for Periodic Reporting
The NYSDEC has authority to enforce federal emissions reporting and
record-keeping regulations through ECL Section 19-0311, ``Operating
permit program for sources subject to the federal Clean Air Act.'' In
particular, ECL Section 19-0311 Subsection 3 provides requirements for
detailed monitoring, record-keeping, and reporting, including that
records be kept for five years, and that monitoring records be
submitted to the NYSDEC at least every six months. These requirements
are also contained in 6 NYCRR Subpart 201-6.2(d), which requires that
all Title V facility permit applications provide for emissions
monitoring, record-keeping, and reporting. In addition, major facility
owners must report annual emissions to the NYSDEC pursuant to 6 NYCRR
Subpart 202-2, ``Emission Statements.''
Sub-Element (iii)--Stationary Source Emission Inventories
This sub-element requires the correlation of all state reports on
emissions from stationary sources. This includes emission inventories
based on actual emissions submitted and calculated through annual
emission statements from minor stationary sources based on area
sources.
Procedures Established by the EPA
The EPA's Air Emissions Reporting Requirements (AERR) were
promulgated in 2008, consolidating and streamlining the requirements of
several older rules for states and local air pollution control agencies
to submit emissions inventories for criteria pollutants to the EPA's
Emissions Inventory System (EIS). See 73 FR 76539 (December 17, 2008).
The EPA uses these submissions, along with other data sources
(primarily for air toxics), to build the National Emissions Inventory
(NEI).
The NYSDEC ensures compliance with the AERR through several
regulations, including 6 NYCRR Section 201-5.3 (concerning facility
permit conditions, including record-keeping and recording
requirements), 6 NYCRR Section 201-6.4 (requiring Title V permits to
incorporate all federal reporting requirements), and 6 NYCRR Subpart
202-2, ``Emission Statements'' (outlining emission reporting
requirements for major sources and sources in ozone nonattainment areas
emitting at least 25 tons-per-year of NOX or VOCs). The
NYSDEC ensures that records are available for public review pursuant to
6 NYCRR Part 616, ``Access to Records.''
The EPA proposes to approve the New York submittal pursuant to
Section 110(a)(2)(F) with respect to the 2015 Ozone NAAQS based on the
demonstration of adequate stationary source monitoring and reporting.
Element G: Emergency power: Section 110(a)(2)(G) (Element G)
requires states to provide for emergency authority to address
activities causing imminent and substantial endangerment to public
health and requires states to submit adequate contingency plans to
implement the emergency episode provisions in their SIPs.
The EPA requires that Infrastructure SIP submittals 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.
Articles 3 and 19 of the ECL provide New York State with the
authority to address air pollution emergencies. ECL section 3-0301,
entitled, ``General functions power and duties of the DEC and the
commissioner,'' authorizes the NYSDEC to prevent and control air
pollution emergencies as defined in ECL section 1-0303. ECL articles 3
and 19 are implemented through 6 NYCRR part 207, ``Control Measures for
Air Pollution Episodes,'' which the EPA approved as part of the New
York SIP. See 46 FR 55690 (November 12, 1981).
The EPA also notes that the NYSDEC has implemented 6 NYCRR Part 207
through Air Pollution Episode Procedures (APEPs), also called Alert
Criteria (updated December 2018 and May 2019 at https://www.dec.ny.gov/chemical/60440.html).
As stated in its supplemental submittal dated July 10, 2019, the
[[Page 35040]]
NYSDEC has revised the Air Quality Index (AQI) reporting thresholds and
related priority levels pursuant to the 2015 Ozone NAAQS and other
NAAQS revisions to reflect 40 CFR part 58, Appendix G, Table 2,
``Breakpoints for the AQI.'' The NYSDEC also updated its list of
contacts and other relevant information. The July 2019 supplemental
submittal indicates that the public was notified of the revisions
through publication in the Environmental Notice Bulletin on May 22,
2019, and that no comments were received on the proposed submittal.
The EPA proposes that New York has met the requirements of section
110(a)(2)(G) for the 2015 Ozone NAAQS.
Element H: Future SIP Revisions: Section 110(a)(2)(H) requires
states to have authority to revise their SIPs in response to changes in
the NAAQS or availability of improved methods for attaining the NAAQS
and whenever the EPA finds that the SIP is substantially inadequate.
The EPA recognizes that the following provisions of the ECL provide the
necessary authority for the NYSDEC to revise a SIP and provide for
enforcement in response to revisions of the NAAQS, the availability of
improved methods of attaining the NAAQS, or in response to a finding by
the EPA that the SIP is substantially inadequate:
3-0301, ``General functions, powers and duties of the
department and the commissioner;''
19-0103, ``Declaration of policy;''
19-0301, ``Powers and duties;''
19-0303, ``Codes, rules and regulations;''
19-0305, ``Commissioner; enforcement power;''
71-2103, ``Violations; civil liability;'' and
71-2105, ``Criminal liability for violations.''
As the NYSDEC submittal explains, Article 19 of the ECL was adopted
to protect New York's air resources from pollution and to effectuate
the policy of the state to maintain a reasonable degree of purity of
the air resources, consistent with public health and welfare and the
industrial development of the state. To this end, the state legislature
gave NYSDEC specific powers and duties, including the power to
promulgate and revise regulations for preventing, controlling, or
prohibiting air pollution. NYSDEC also has the specific authority to
regulate motor vehicle exhaust, approve air contaminant control
systems, and regulate fuels.
The EPA proposes to find that the SIP complies with the
requirements of section 110(a)(2)(H) for the 2015 Ozone NAAQS.
Element I: Plan Revisions for Nonattainment Areas (under part D):
Section 110(a)(2)(I) provides that each plan or plan revision for an
area designated as a nonattainment area shall meet the applicable
requirements of part D of the CAA. EPA interprets section 110(a)(2)(I)
to be inapplicable to the infrastructure SIP process because specific
SIP submissions for designated nonattainment areas, as required under
part D, are subject to a different submission schedule under subparts 2
through 5 of part D, extending as far as 10 years following area
designations for some elements, whereas infrastructure SIP submissions
are due within three years after adoption or revision of a NAAQS.
Accordingly, EPA takes action on part D attainment plans through
separate processes.
Element J: Section 110(a)(2)(J): Consultation with Government
Officials, Public Notification, and PSD and Visibility Protection:
Section 110(a)(2)(J) mandates that plans meet the requirements in CAA
sections 121 (concerning consultation with government officials), 127
(concerning public notification), and Part C (relating to PSD and
visibility protection).
Consultation With Government Officials
CAA Section 110(a)(2)(J) requires states to meet the applicable
requirements of CAA section 121 relating to consultation. CAA section
121 requires states to provide a satisfactory process of consultation
with general purpose local governments, designated organizations of
elected officials of local governments, Tribal Nations, Federal Land
Managers (FLMs), and Regional Organizations.
Although there are no federal lands within New York State to which
the state plan applies, the NYSDEC participates in the consultation
process of the Regional Haze SIP with the FLMs, states, and Tribes
within the Mid-Atlantic/Northeast Visibility Union (MANE/VU) and other
regional planning organizations, and has committed to comply with 40
CFR 51.308 to provide FLMs an opportunity to meaningfully inform the
long-term strategy.
On December 22, 2005, the NYSDEC established a SIP Coordinating
Council, consisting of senior policy representatives from 19 state
agencies and authorities, and a SIP Task Force, consisting of officials
from 37 local governments and designated organizations of elected
officials. The SIP Coordinating Council provides a means to keep state
agencies and local governments informed of planned SIP activities and
deadlines, and also provides a forum for discussion of SIP requirements
and implications, such as effects on transportation planning. The SIP
Task Force provides a means of facilitating local involvement at the
Metropolitan Planning Organization (MPO) and county levels. Periodic
meetings of both groups are convened as necessary to address ozone SIP
development and nonattainment of the ozone NAAQS and other revised
standards.
The EPA proposes to find that New York has met the requirements of
CAA section 110(a)(2)(J) for consultation with government officials.
Public Notification
CAA section 110(a)(2)(J) also requires state plans to meet the
public notification requirements of CAA section 127: to notify the
public if NAAQS are exceeded in an area, advise the public of health
hazards associated with exceedances, and enhance public awareness of
measures that can be taken to prevent exceedances and of ways in which
the public can participate in regulatory and other efforts to improve
air quality.
Ozone concentrations that have exceeded the 2015 Ozone NAAQS at any
monitor state-wide are reported on the NYSDEC website, at https://www.dec.ny.gov/chemical/38377.html. Municipalities have emergency-
response plans recommended by the New York State Office of Emergency
Management and the Federal Emergency Management Agency that provide for
public information and notification in the case of large-scale
emergencies.
The NYSDEC's website at https://www.dec.ny.gov/chemical/34985.html
contains an Air Quality Index (AQI) for reporting daily air quality to
the public. It describes how clean or polluted the air is and what
associated health effects might be a concern. The NYSDEC, in
cooperation with the New York State Department of Health, posts
warnings on the above-referenced website and issues press releases to
local media outlets if dangerous conditions are expected to occur.
These warnings are also available on the NYSDEC's toll-free Air Quality
Hotline at (800) 535-1345. The Air Quality Index displays the predicted
AQI value for the eight regions in New York State. It also displays the
observed values for the previous day. Real-time monitoring data are
also available on an individual monitor basis on the NYSDEC's air
monitoring website. ``Department of Environmental Conservation Air
Monitoring website,'' https://
[[Page 35041]]
www.nyaqinow.net/. Air quality measurements from New York's continuous
monitoring network are updated hourly where available. Parameters
monitored include ozone, fine particulate, carbon monoxide, sulfur
dioxide, nitrogen oxides, methane/hydrocarbons, and meteorological
data. The NYSDEC also provides ozone-specific information on its
website, including the health-related effects of ozone pollution, at
https://www.dec.ny.gov/chemical/8400.html. It also includes general
measures the public can take to help reduce the formation of ozone, at
https://www.dec.ny.gov/chemical/8554.html.
As described in the New York State Administrative Procedure Act
(APA), and as required by 40 CFR 51.102, the NYSDEC must provide
appropriate notice of each major SIP revision, and the public is
afforded the opportunity to participate in the regulatory process by
submitting written comments and petitioning for a public hearing on
such revisions.
The EPA proposes to find that New York has met the requirements of
CAA section 110(a)(2)(J) for public notification.
Prevention of Significant Deterioration
As detailed in the discussion of Element C, above, New York has a
SIP-approved PSD/NSR program that covers all criteria pollutants and
greenhouse gases, including ozone, which is contained in 6 NYCRR Part
231, ``New Source Review for New and Modified Facilities,'' and which
was approved by the EPA on November 17, 2010 (75 FR 70142). 6 NYCRR
Part 231 regulates major sources under NSR (when the source is located
in a nonattainment area) and PSD (when the source is located in an
attainment area).
The EPA proposes to approve New York's infrastructure SIP with
respect to the requirements of the PSD sub-element of CAA section
110(a)(2)(J).
Visibility Protection
Visibility Protection and regional haze program requirements under
section 169A and B of Part C are being met by the NYSDEC through
separate efforts. In the event of the establishment of a new NAAQS, the
visibility and regional haze program requirements under Part C do not
change. As noted in the EPA's 2013 guidance, we find that there is no
new visibility obligation triggered under section 110(a)(2)(J) when a
new NAAQS becomes effective. There are thus no new applicable
visibility protection obligations under section 110(a)(2)(J) resulting
from the 2015 Ozone NAAQS revision, and the EPA is therefore not acting
on the visibility aspect of Element J.
Element K: Air Quality Modeling/Data: Section 110(a)(2)(K) requires
that SIPs provide for air quality modeling for predicting effects on
air quality of emissions from any NAAQS pollutant and submission of
such data to the EPA upon request. The infrastructure SIP submittal
affirms that the modeling procedures are in accordance with 40 CFR part
51, Appendix W, also known as the Guideline on Air Quality Models. The
NYSDEC submittal cites 6 NYCRR Part 200.6, which defines ``Acceptable
ambient air quality,'' in support of its position that ``when a new
major source of emissions is coming online or an existing source is
undertaking a modification that would lead to a significant increase in
its potential to emit, NYSDEC will use modeling as necessary to affirm
that compliance with the ozone NAAQS will be maintained.'' The
submittal also cites 6 NYCRR 231-12, ``Ambient Air Quality Impact
Analysis,'' which sets forth the procedures and requirements for an air
quality impact analysis. The NYSDEC submittal certifies that air
quality modeling and analysis complies with the latest EPA guidance on
the use of models in attainment demonstrations, and commits to continue
to use air quality models in accordance with EPA's approved modeling
guidance and to submit data to the Administrator if requested.
Element L: Permitting Fees: Section 110(a)(2)(L) requires SIPs to
mandate that each major stationary source pay permitting fees to cover
the cost of reviewing, approving, implementing, and enforcing a permit,
until such time as the SIP fee requirement is superseded by the EPA's
approval of the state's operating permit program. New York has an
approved Title V operating permit program. 67 FR 5216 (February 5,
2002); see also 66 FR 63180 (Dec. 5. 2001); 61 FR 57589 (Nov. 7, 1996).
The NYSDEC submittal identifies the following statutory and regulatory
provisions that provide for the collection of permitting fees: ECL
section 72-0302, ``State air quality control fees'' states that those
who are required to obtain a permit, certificate or approval must
submit to NYSDEC a per emission point fee; ECL section 72-0303,
``Operating permit program fees,'' establishes a base fee; 6 NYCRR
subpart 482-2, as revised effective June 17, 2018, and promulgated
pursuant to the statutory authority granted to NYSDEC under ECL 72-
0303, establishes an annual fee; and 6 NYCRR subpart 201-6.4(a)(7)
which provides that the owner and/or operator of a stationary source
will pay the fees to NYSDEC consistent with the fee schedule
established in 6 NYCRR subpart 482-2. The EPA is proposing to approve
this Element.\6\
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\6\ Due to State revisions to 6 NYCRR 201-6, section 201-
6.5(a)(7) in the EPA-approved New York Title V program is now
numbered in the State's regulation as 6 NYCRR 201-6.4(a)(7).
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Element M: Consultation/Participation by Affected Local Entities:
Section 110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP.
The submittal provides information regarding the NYSDEC's authority
to provide for consultation and participation in SIP development, in
support of the EPA's proposed approval of this element. The submittal
identifies the SIP Task Force, consisting of officials from 37 local
governments and designated organizations of elected officials, which
the NYSDEC utilizes as necessary for consultation on plans.
Participation by local entities, as well as the public, is provided
through 6 NYCRR Part 617, ``State Environmental Quality Review.''
VIII. What action is the EPA taking?
In summary, the EPA is proposing approval of the following elements
and sub-elements of New York's Infrastructure SIP submittal for 2015
Ozone NAAQS: Section 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 and for
construction or modification of stationary sources]; 110(a)(2)(D)
[interstate pollution transport (sub-elements addressing PSD,
visibility, and interstate and international pollution abatement
only)]; 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 officials, public notification, and PSD]; 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].
As previously stated, this proposed action does not address the
section 110(a)(2)(D)(i)(I) (prongs 1 and 2) portions of the New York
2015 Ozone infrastructure SIP. The EPA will act on these portions of
New York's infrastructure SIP in a separate rulemaking action. For the
reasons
[[Page 35042]]
provided in the discussion above, Element I and the visibility aspect
of Element J are not being addressed.
The EPA is soliciting public comments on the issues discussed in
this proposal. These comments will be considered before the EPA takes
final action. Interested parties may participate in the federal
rulemaking procedure by submitting comments electronically following
the directions in the ADDRESSES section of this Federal Register.
IX. 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 Orders
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 this action does not involve technical standards; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629 (February 16, 1994)).
This proposed rulemaking pertaining to New York's section 110(a)(2)
infrastructure requirements for the 2015 Ozone NAAQS is not approved to
apply on any Indian reservation land or in any other area where the EPA
or an Indian tribe has demonstrated that a tribe has jurisdiction. In
those areas of Indian country, the proposed rule does not have tribal
implications and will not impose substantial direct costs on tribal
governments or preempt tribal law as specified by Executive Order 13175
(see 65 FR 67249 (November 9, 2000)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds, Nitrogen
oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 23, 2021.
Walter Mugdan,
Acting Regional Administrator, EPA Region 2.
[FR Doc. 2021-14057 Filed 6-30-21; 8:45 am]
BILLING CODE 6560-50-P
