[Federal Register Volume 78, Number 83 (Tuesday, April 30, 2013)]
[Proposed Rules]
[Pages 25236-25242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10168]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2013-0274, FRL-9807-6]


Approval and Promulgation of Implementation Plans; New York; 
Infrastructure SIP for the 1997 8-Hour Ozone and the 1997 and 2006 Fine 
Particulate Matter Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve most elements of New York's State Implementation Plan (SIP) 
revisions submitted to demonstrate that the State meets the 
requirements of the Clean Air Act (CAA) for the 1997 8-hour ozone and 
the 1997 and 2006 fine particulate matter (PM2.5) National 
Ambient Air Quality Standards (NAAQS). EPA is also proposing to 
conditionally approve certain elements of New York's submittals. The 
CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by the EPA and is commonly referred to as an infrastructure SIP.

DATES: Comments must be received on or before May 30, 2013.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2013-0274, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Fax: 212-637-3901.
     Mail: Richard Ruvo, Acting Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, Acting Chief, Air Programs 
Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 
25th Floor, New York, New York 10007-1866. Such deliveries are only 
accepted during the Regional Office's normal hours of operation. The 
Regional Office's official hours of business are Monday through Friday, 
8:30 to 4:30 excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2013-0274. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Environmental 
Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 
25th Floor, New York, New York 10007-1866. EPA requests, if at all 
possible, that you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:30 a.m. 
to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4249, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. What action is 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 did New York submit?
VI. How has the State addressed the elements of the section 
110(a)(1) and (2) ``infrastructure'' provisions?
VII. What action is EPA taking?
VIII. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    EPA is proposing to approve and conditionally approve elements of 
the State of New York Infrastructure SIP as meeting the section 110(a) 
infrastructure requirements of the Clean Air Act (CAA) for the 1997 
ozone, 1997 PM2.5 and 2006 PM2.5 National Ambient 
Air Quality Standards (NAAQS or standards). As explained below, the 
State has the necessary infrastructure, resources, and general 
authority to implement the 1997 8-hour ozone and 1997 and 2006 
PM2.5 standards, except where specifically noted.

II. What is the background information?

    On July 18, 1997, EPA promulgated new and revised NAAQS for 8-hour 
ozone (62 FR 38856) and PM2.5 (62 FR 38652). The ozone NAAQS 
is based on 8-hour average concentrations. The 8-hour averaging period 
replaced the previous 1-hour averaging period, and the level of the 
NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm \1\. 
The new PM2.5 NAAQS established a health-based standard of 
15.0 micrograms per cubic meter ([micro]g/

[[Page 25237]]

m\3\) based on a 3-year average of annual mean PM2.5 
concentrations, and a 24-hour standard of 65 [micro]g/m\3\ based on a 
3-year average of the 98th percentile of 24-hour concentrations. EPA 
strengthened the 24-hour PM2.5 NAAQS from 65 [micro]g/m\3\ 
to 35 [micro]g/m\3\ on October 17, 2006 (71 FR 61144) \2\.
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    \1\ EPA issued a revised 8-hour ozone standard on March 27, 2008 
(73 FR 16436). On September 22, 2011, EPA clarified that the current 
ozone standard is set at 75 ppb. EPA is not addressing the 2008 
ozone NAAQS in this rulemaking.
    \2\ EPA issued a revised PM2.5 standard on January 
15, 2013 (78 FR 3086). EPA is not addressing the 2012 
PM2.5 NAAQS in this rulemaking.
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    Section 110(a) of the CAA requires states to submit State 
Implementation Plans (SIPs) that provide for the implementation, 
maintenance, and enforcement of new or revised NAAQS within three years 
following the promulgation of such NAAQS.

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 
requires, in part, that states submit to EPA plans to implement, 
maintain and enforce each of the NAAQS promulgated by EPA. EPA 
interprets this provision to require states to address basic SIP 
requirements including emission inventories, monitoring, and modeling 
to assure attainment and maintenance of the standards. By statute, SIPs 
meeting the requirements of section 110(a)(1) and (2) are to be 
submitted by states within three years after promulgation of a new or 
revised standard. These SIPs are commonly called infrastructure SIPs. 
In 1997, EPA promulgated the 8-hour ozone primary and secondary NAAQS 
and a new annual and 24-hour PM2.5 NAAQS. Intervening 
litigation over the 1997 standards caused a delay in SIP submittals. In 
2006, EPA promulgated a new 24-hour PM2.5 NAAQS.

IV. What elements are required under section 110(a)(1) and (2)?

    The infrastructure requirements are listed in EPA's October 2, 
2007, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' and September 
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards.\3\ The 14 
elements required to be addressed are as follows: (1) Emission limits 
and other control measures; (2) ambient air quality monitoring/data 
system; (3) program for enforcement of control measures; (4) interstate 
transport; (5) adequate resources; (6) stationary source monitoring 
system; (7) emergency power; (8) future SIP revisions; (9) consultation 
with government officials; (10) public notification; (11) prevention of 
significant deterioration (PSD) and visibility protection; (12) air 
quality modeling/data; (13) permitting fees, and (14) consultation/
participation by affected local entities.
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    \3\ ``Guidance on SIP Elements Required Under Sections 110(a)(1) 
and (2) for the 1997 8-hour Ozone and PM2.5 National 
Ambient Air Quality Standards'' which can be found at http://www.epa.gov/ttn/oarpg/t1/memoranda/110a_sip_guid_fin100207.pdf 
and ``Guidance on SIP Elements Required Under Sections 11O(a)(l) and 
(2) for the 2006 24-Hour Fine Particle (PM2.5) National 
Ambient Air Quality Standards (NAAQS)'' which can be found at http://www.epa.gov/ttn/oarpg/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.
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    Two elements identified in section 110(a)(2) are not governed by 
the 3 year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not due 
within 3 years after promulgation of a new or revised NAAQS, but rather 
due at the time that the nonattainment area plan requirements are due 
pursuant to section 172. See 77 FR 46354 (August 3, 2012); 77 FR 60308 
(October 3, 2012, footnote 1). These requirements are: (1) submissions 
required by section 110(a)(2)(C) to the extent that subsection refers 
to a permit program as required in part D Title I of the CAA, and (2) 
submissions required by section 110(a)(2)(I) which pertain to the 
nonattainment planning requirements of part D, Title I of the CAA. As a 
result, this action does not address the above infrastructure elements 
related to section 110(a)(2)(C) or 110(a)(2)(I).
    This action also does not address the requirements of section 
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5 NAAQS, 
since they had been addressed in previous rulemakings. See January 24, 
2008 (73 FR 4109). Additionally, this action does not address the 
requirements of section 110(a)(2)(D)(i)(I) for the 2006 
PM2.5 NAAQS, which was addressed in a previous EPA 
rulemaking. See July 20, 2011 (76 FR 43153).

Scope of Infrastructure SIPs

    This rulemaking will not cover four substantive issues that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'') at sources, that may be 
contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(``director's discretion''); (iii) existing provisions for minor source 
NSR programs that may be inconsistent with the requirements of the CAA 
and EPA's regulations that pertain to such programs (``minor source 
NSR''); and, (iv) existing provisions for PSD programs that may be 
inconsistent with current requirements of EPA's ``Final NSR Improvement 
Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 
(June 13, 2007) (``NSR Reform''). A detailed rationale for why these 
four substantive issues are not part of the scope of infrastructure SIP 
rulemakings can be found in EPA's July 13, 2011, final rule entitled, 
``Approval and Promulgation of Air Quality Implementation Plans; 
Illinois; Indiana; Michigan; Minnesota; Ohio; Wisconsin; Infrastructure 
SIP Requirements for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards'' in the section entitled, 
``What is the scope of this final rulemaking?'' (76 FR 41075 at 41076-
41079).

V. What did New York Submit?

    EPA is acting on three New York SIP submittals, dated December 13, 
2007, October 2, 2008 and March 15, 2010, which address the section 110 
infrastructure requirements for the three NAAQS: the 1997 8-hour ozone 
NAAQS, the 1997 annual and 24-hour PM2.5 NAAQS, and the 2006 
24-hour PM2.5 NAAQS.

December 13, 2007 SIP submission

    New York's section 110 infrastructure submittal was submitted by 
the New York State Department of Environmental Conservation (NYSDEC) on 
December 13, 2007 and addressed the 1997 ozone NAAQS. Effective April 
28, 2008, the submittal was determined to be complete for all elements 
except 110(a)(2)(C). 73 FR 16205 (March 27, 2008). New York's December 
13, 2007 section 110 submittal demonstrates how the State, where 
applicable, has a plan in place that meets the requirements of section 
110 for the 1997 8-hour ozone NAAQS. This plan references the current 
New York Air Quality SIP, the New York Codes of Rules and Regulations 
(NYCRR), the New York Environmental Conservation Law (ECL) and the New 
York Public Officer's Law (POL). The NYCRR, ECL and POL

[[Page 25238]]

referenced in the submittal are publicly available. New York's air 
pollution control regulations that have been previously approved by EPA 
and incorporated into the New York SIP can be found at 40 CFR 52.1670 
and are posted on the Internet at: http://www.epa.gov/region02/air/sip/ny_reg.htm.

October 2, 2008 SIP submission

    New York's section 110 infrastructure submittal for the 1997 
PM2.5 NAAQS was submitted by the NYSDEC on October 2, 2008, 
and the submittal was deemed complete April 2, 2009.

March 15, 2010 SIP submission

    New York's section 110 infrastructure submittal for the 2006 
PM2.5 24-hour NAAQS was submitted by the NYSDEC on March 15, 
2010, and the submittal was deemed complete September 15, 2010.
    EPA's evaluation of all three submittals is detailed in the 
``Technical Support Document for EPA's Proposed Rulemaking for the New 
York's State Implementation Plan Revision: State Implementation Plan 
Revision For Meeting the Infrastructure Requirements In the Clean Air 
Act Dated December 13, 2007, October 2, 2008 and March 15, 2010'' 
(TSD). As explained in the ADDRESSES section of this action, the TSD is 
available in the docket (EPA-R02-OAR-2013-0274) for this action and at 
the EPA Region 2 Office.

VI. How has the State addressed the elements of the section 110(a)(1) 
and (2) ``infrastructure'' provisions?

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. EPA notes that the specific nonattainment area plan 
requirements of section 110(a)(2)(I) are subject to the timing 
requirement of section 172, not the timing requirement of section 
110(a)(1). New York's ECL section 19-0301, provides the NYSDEC with 
power to formulate, adopt and promulgate, amend and repeal codes and 
rules and regulations for preventing, controlling and prohibiting air 
pollution in such areas of the State as shall or may be affected by air 
pollution. The federally enforceable New York SIP contains enforceable 
emission limits and other control measures. 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 1997 8-hour ozone and the 
1997 and 2006 PM2.5 NAAQS.

B. Ambient Air Quality Monitoring/Data System

    Section 110(a)(2)(B) requires SIPs to include provisions to provide 
for establishment and operation of ambient air quality monitors, to 
monitor, compile and analyze ambient air quality data, and to make 
these data available to EPA upon request. New York, under its authority 
provided in ECL subsection 19-0305(2)(d), operates and maintains a 
network of ambient air quality monitors used to sample the degree of 
air pollution throughout the State and submits the data collected to 
EPA. New York has submitted annual air monitoring network plans which 
have been approved by EPA. The most recent was approved by EPA on 
October 18, 2012. EPA is proposing to determine that New York has met 
the requirements of section 110(a)(2)(B) of the CAA with respect to the 
1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS.

C. Program for Enforcement of Control Measures

    Section 110(a)(2)(C) requires states to have a plan that includes a 
program providing for enforcement of all SIP measures and the 
regulation of the modification and construction of any stationary 
source, including a program to meet Prevention of Significant 
Deterioration (PSD) and minor source new source review.
    The NYSDEC is authorized by ECL section 19-0305, to enforce the 
codes, rules and regulations of the NYCRR. The minor source permitting 
and enforcement programs operate under Title 6 NYCRR Part 201, 
``Permits and Registrations''. EPA proposes to find that the State has 
adequate authority and regulations to insure that SIP approved control 
measures are enforced for the 1997 8-hour ozone and the 1997 
PM2.5 and 2006 PM2.5 NAAQS.
    On March 3, 2009, the State of New York, through the NYSDEC, 
submitted to EPA Region 2 revisions to the New York SIP. The submittal 
consists of revisions to three regulations. The affected regulations 
are: 6 NYCRR Part 231, ``New Source Review for New and Modified 
Facilities''; 6 NYCRR Part 200, ``General Provisions''; and 6 NYCRR 
Part 201, ``Permits and Certificates''. The purpose of these revisions 
were to revise the New York State PSD program regulations and to update 
the existing New York State nonattainment regulations consistent with 
changes to the Federal NSR regulations published on December 31, 2002 
(67 FR 80186). On November 17, 2010 (75 FR 70140), EPA approved the New 
York PSD program.
    EPA proposes to find that the State has adequate authority and 
regulations to ensure that SIP-approved control measures are enforced. 
EPA also finds that based on the approval of New York's PSD program, 
New York has the authority to regulate the construction of new or 
modified stationary sources to meet the PSD program requirements. EPA 
is proposing to determine that New York has met the requirements of 
section 110(a)(2)(C) and (J) of the CAA with respect to the 1997 8-hour 
ozone and the 1997 and 2006 PM2.5 NAAQS.

D. Interstate Transport

    Section 110(a)(2)(D) is divided into two subsections, 
110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) consists 
of two subsections (I) and (II), each of which has two ``prongs.'' The 
two prongs under 110(a)(2)(D)(i)(I) prohibit any source or other type 
of emissions activity within the State from emitting any air pollutants 
in amounts which will (prong 1) contribute significantly to 
nonattainment in any other state with respect to any primary or 
secondary NAAQS, and (prong 2) interfere with maintenance by any other 
state with respect to any primary or secondary NAAQS. The two prongs 
under 110(a)(2)(D)(i)(II) prohibit any source or other type of 
emissions activity within the state from emitting any air pollutants in 
amounts which will interfere with measures required to be included in 
the applicable implementation plan for any other state under part C 
(prong 3) to prevent significant deterioration of air quality or (prong 
4) to protect visibility.
    Section 110(a)(2)(D)(ii) addresses interstate and international 
pollution abatement, and requires SIPs to include provisions insuring 
compliance with sections 115 and 126 of the CAA, relating to interstate 
and international pollution abatement.
    In this action for New York, with respect to section 
110(a)(2)(D)(i), we are only addressing prong 3 (i.e., interference 
with PSD) and prong 4 (i.e., to protect visibility) of 
110(a)(2)(D)(i)(II). EPA previously took rulemaking action on prong 1 
and prong 2 on January 24, 2008 (73 FR 4109) for the 1997 ozone and 
1997 PM2.5 NAAQS, and July 20, 2011 (76 FR 43153) for the 
2006 PM2.5 NAAQS, respectively. For prong 3, as discussed 
previously under (C) (Program for enforcement of control measures), on 
November 17, 2010 (75 FR 70140), EPA approved the New York PSD program. 
A state's infrastructure SIP submittal can be considered for 
approvability with respect to prong 3 if

[[Page 25239]]

EPA has issued final approval of that state's PSD SIP or, 
alternatively, has issued final approval of a SIP that EPA has 
otherwise found adequate to prohibit interference with other states' 
measures to prevent significant deterioration of air quality. 
Therefore, we are proposing to approve New York's 110(a) submissions 
for prong 3 of 110(a)(2)(D)(i)(II) because New York has a federally 
approved PSD program.
    For prong 4, New York has met its obligations pursuant to section 
110(a)(2)(D)(i)(II) for visibility protection for all three NAAQS 
through its Regional Haze SIP submittals, which were approved by EPA on 
August 28, 2012 (77 FR 51915). The regional haze rule specifically 
requires that a state participating in a regional planning process 
include all measures needed to achieve its apportionment of emission 
reduction obligations agreed upon through that process. Thus, New 
York's approved Regional Haze SIP will ensure that emissions from 
sources within the State are not interfering with measures to protect 
visibility in other states. Therefore, EPA proposes to find for 8-hr 
ozone and PM2.5 NAAQS that New York satisfies the section 
110(a)(2)(D)(i)(II) requirement for visibility.
    Regarding section 110(a)(2)(D)(ii), which relates to interstate and 
international pollution abatement, as noted above, on November 17, 2010 
(75 FR 70140), EPA approved the New York PSD program which is 
consistent with 40 CFR 51.166(q)(2)(iv), and requires a source to 
notify air agencies whose lands may be affected by emissions from that 
source (see 6 NYCRR sections 231-7.4(f) and 8.5(f)). New York has no 
pending obligations under section 115 or 126(b) of the CAA. Therefore, 
we are proposing to approve New York's submissions for infrastructure 
element 110(a)(2)(D)(ii).

E. Adequate Resources

    Section 110(a)(2)(E) requires each state to provide necessary 
assurances that the state (i) will 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 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.
    New York has adequate authority, under ECL sections 19-0301, 0303 
and 0305, to carry out its SIP obligations with respect to the 1997 
ozone and 1997 and 2006 PM2.5 NAAQS. New York receives 
sections 103 and 105 grant funds along with required State-matching 
funds to provide funding necessary to carry out its SIP requirements. 
Therefore, EPA proposes to find New York has sufficient resources to 
meet the requirements of section 110(a)(2)(E)(i) for the 1997 8-hr 
ozone and 1997 and 2006 PM2.5 NAAQS.
    Congress added section 128 in the 1977 amendments. Titled ``State 
boards,'' section 128 provides in relevant part: (a) Not later than the 
date one year after August 7, 1977, each applicable implementation plan 
shall contain requirements that: (1) Any board or body which approves 
permits or enforcement orders under [this Act] shall have at least a 
majority of members who represent the public interest and do not derive 
any significant portion of their income from persons subject to permits 
or enforcement orders under [this Act], and (2) Any potential conflicts 
of interest by members of such board or body or the head of an 
executive agency with similar powers be adequately disclosed. New York 
does not have a state board that approves permits or enforcement orders 
under the CAA. Instead, permits and enforcement orders are approved by 
the State's Commissioner of Environmental Conservation. Thus, the 
requirements of subsection 128(a)(1) are not applicable to New York. 
New York is subject to the requirements of section 128(a)(2). In its 
SIP submission New York cited POL sections 74(2) and 74(3)(e) which 
address conflict of interest. However, after further discussion with 
NYSDEC, it is more relevant to cite POL section 73-a, ``Financial 
disclosure'' and 19 NYCRR 937, ``Access To Publicly Available 
Records,'' as satisfying the section 128(a)(2) requirement. EPA 
proposes to conditionally approve the infrastructure SIP in fulfilling 
the requirements of section 110(a)(2)(E)(ii) for 1997 8-hour ozone and 
PM2.5 NAAQS, provided the State submits POL section 73-a and 
19 NYCRR 937 for approval as part of the SIP. In the alternative, 
should New York provide this information before we take final 
rulemaking, EPA will fully approve section 110(a)(2)(E)(ii).
    Section 110(a)(2)(E)(iii) requires states to provide necessary 
assurances that, where the state has relied on a local or regional 
government, agency or instrumentality for the implementation of any 
provision of the SIP, the state has responsibility for ensuring 
adequate implementation of the SIP provision. The NYSDEC has delegation 
authority for inspection and enforcement efforts of various regulations 
under the general enforcement powers provided in ECL section 19-0305.
    While New York has the authority to delegate responsibilities to 
county or local governments to implement certain SIP responsibilities, 
the information provided in both infrastructure SIP submittals does not 
identify the specific organizations that will participate in 
developing, implementing, and enforcing the plan and the 
responsibilities of such organizations. EPA proposes to conditionally 
approve the infrastructure SIP with regard to the requirements of 
section 110(a)(2)(E)(iii). The State must identify the county or local 
governments or entities that participate in the SIP planning efforts, 
identify the county or local governments or entities that have been 
delegated responsibilities to implement or enforce portions of the SIP, 
and provide copies of the delegation orders or memoranda of 
understanding (MOUs) between the State and the county or local 
governments or entities. Since it is EPA's understanding that this 
deficiency involves information that exists but was not provided in the 
SIP submittal, EPA proposes to conditionally approve section 
110(a)(2)(E)(iii) for the 1997 8-hour ozone and 1997 and 2006 
PM2.5 NAAQS. In the alternative, should New York provide 
this information before we take final rulemaking, EPA will fully 
approve section 110(a)(2)(E)(iii).

F. Stationary Source Monitoring System

    Section 110(a)(2)(F) requires states to establish a system to 
monitor emissions from stationary sources and to submit periodic 
emission reports.
    The NYSDEC has the authority pursuant to ECL subsection 19-
0311(3)(c) to require emissions monitoring, recordkeeping and reporting 
of stationary sources before an operating permit is issued or renewed. 
NYSDEC has adopted regulations to implement the federal requirements 
for stationary source emissions monitoring, reporting and recordkeeping 
in 6 NYCRR Part 201-6.4(b) and (c).
    The NYSDEC adopted 6 NYCRR Part 202, ``Emission Verification,'' to 
require emissions reports from stationary sources. Further 6 NYCRR Part 
616, Access to Records, specifically allows emission information to be 
made available to the public.
    Based on the authority pursuant to ECL subsection 19-0311(3)(c) and 
the adoption of the Part 202, specifically subpart 202-2, ``Emission 
Statements,'' EPA is proposing to find that New York has met the 
requirements of section

[[Page 25240]]

110(a)(2)(F) for the 1997 8-hr ozone and 1997 and 2006 PM2.5 
NAAQS.

G. Emergency Power

    Section 110(a)(2)(G) requires states to provide for authority to 
address activities causing imminent and substantial endangerment to 
public health, including contingency plans to implement the emergency 
episode provisions in their SIPs.
    For PM2.5, EPA's guidance dated September 25, 2009 \4\ 
provides clarification that states that have air quality control 
regions identified as either Priority I, Priority IA or Priority II by 
the ``Prevention of Air Pollution Emergency Episodes'' rules at 40 CFR 
51.150 must develop emergency episode contingency plans. States are 
required to develop emergency episode plans for any area that has 
monitored and recorded 24-hour PM2.5 levels greater than 
140.4 [micro]g/m\3\ since 2006. A state that has never exceeded this 
level since 2006 is considered to be Priority III. 40 CFR 51.150(f). In 
accordance with the guidance, a Priority III area may certify that it 
has appropriate general emergency powers to address PM2.5-
related episodes, and is not required to adopt specific emergency 
episode plans at this time, given the existing monitored levels.
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    \4\ See Guidance on SIP Elements Required Under Sections 
110(a)(l) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS), 
from William T. Harnett, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards, dated September 25, 
2009.
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    Since 2006, air-quality monitors in New York show that 
PM2.5 levels have been below the 140.5 [mu]g/m\3\ threshold. 
Based on air quality data, New York should be classified as a Priority 
III region and, therefore, emergency episode plans for PM2.5 
are not required.
    However, in general and for the 1997 ozone standard, the section 
110(a)(2)(G) requirements are addressed by New York's ECL, Articles 3 
and 19, which are implemented through 6 NYCRR Part 207, ``Control 
Measures for Air Pollution Episodes.'' Among other things, 6 NYCRR Part 
207 requires persons who own a significant air contamination source to 
submit a proposed episode action plan to the NYSDEC Commissioner, and 
enable the Commissioner to designate air pollution episodes which 
trigger the action plans. Pursuant to Part 207.3(a), the NYSDEC 
Commissioner shall have on file and make available the criteria used in 
determining the need to designate episodes. The NYSDEC maintains an 
``Episode Action Plan'' with guidelines and protocols/criteria to be 
followed in case of an air pollution emergency. The NYSDEC's Episode 
Action Plan has been updated to reflect the PM2.5 
Significant Harm Levels (SHLs) proposed by EPA on January 15, 2009 
along with revised values for ozone episodes. Therefore, New York has 
met the requirements of section 110(a)(2)(G) for the 1997 8-hour ozone 
and the 1997 and 2006 PM2.5 standards.

H. Future SIP Revisions

    Section 110(a)(2)(H) requires states to have the authority to 
revise their SIPs in response to changes in the NAAQS, availability of 
improved methods for attaining NAAQS, and in response to an EPA finding 
that the SIP is substantially inadequate.
    Revisions to the New York SIP are authorized by Article 19 and 
sections 3-0301, 19-0103, 19-0301, 19-0303 and 19-0305 of the ECL. 
Article 19 of the ECL was adopted to protect New York's air resources 
from pollution and to put into effect the policy of the State to 
maintain a reasonable degree of purity of the air resources, consistent 
with the public health and welfare and the industrial development of 
the State. NYSDEC is granted specific powers and duties, including the 
power to promulgate regulations for preventing, controlling, or 
prohibiting air pollution. NYSDEC also has the specific authority to 
regulate motor vehicle exhaust and approve air contaminant control 
systems as well as regulate fuels. Section 71-2103 provides general 
enforcement authority for the New York State air regulations. Section 
71-2105 provides criminal enforcement authority. Thus, New York has the 
authority to revise SIPs and provide for enforcement in response to 
changes in the NAAQS and improve methods for attaining the NAAQS. EPA 
proposes to find that the State has adequate authority to develop and 
implement plans and programs that fulfill the requirements of section 
110(a)(2)(H) for the 1997 8-hr ozone and 1997 and 2006 PM2.5 
NAAQS.

I. Nonattainment Area Plans Under Part D

    Section 110(a)(2)(I) of the CAA requires that each such plan shall 
``in the case of a plan or plan revision for an area designated as a 
nonattainment area, meet the applicable requirements of part D of this 
subchapter (relating to nonattainment areas).'' EPA is not evaluating 
nonattainment-related provisions, the NSR program required by part D in 
section 110(a)(2)(C) and measures for attainment required by section 
110(a)(2)(I), as part of the infrastructure SIPs because, as discussed 
elsewhere in this proposal, these submittals have been addressed by 
other SIP revisions which EPA has or will be acting on in other 
rulemakings.

J. Consultation With Government Official, Public Notification, PSD, and 
Visibility Protection

    Section 110(a)(2)(J) requires states to meet the applicable 
requirements of CAA section 121, relating to consultation, CAA section 
127, relating to public notification, and CAA title I, part C, relating 
to the prevention of significant deterioration of air quality and 
visibility protection.

Consultation With Government Officials

    Section 121 requires a process for consultation with local 
governments and Federal Land Managers carrying out NAAQS implementation 
requirements. EPA finds that the 110(a) submittals from New York, and 
the cited authority of section 3-0303 of the ECL, meet the requirements 
of section 110(a)(2)(J) for consultation with government officials.

Public Notification

    Section 127 requires that the state plan include measures to 
effectively notify the public of any NAAQS exceedances, advise the 
public of health hazards associated with such pollution, and include 
measures to enhance public awareness of measures that can be taken to 
prevent exceedances.
    The NYSDEC's Web site, at http://www.dec.nv.qov/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. It was created as a way 
to correlate levels of different pollutants to one scale; the higher 
the AQI value, the greater the health concern. When levels of ozone 
and/or fine particles are expected to exceed an AQI value of 100, an 
Air Quality Health Advisory is issued alerting sensitive groups to take 
the necessary precautions. The NYSDEC, in cooperation with the New York 
State Department of Health, posts warnings on the above-referenced Web 
site and issues press releases to local media outlets if dangerous 
conditions are expected to occur. The Air Quality Forecast displays the 
predicted AQI value for eight regions in New York State. It also 
displays the observed values for the previous day. Air quality 
measurements from New York's statewide continuous monitoring network 
are updated hourly where available. Parameters monitored include ozone, 
fine particulate, carbon

[[Page 25241]]

monoxide, sulfur dioxide, nitrogen oxides, methane/nonmethane 
hydrocarbons, and meteorological data.
    EPA is proposing to find that New York's SIP submittal has met the 
public notification requirements of section 110(a)(2)(J) for the 1997 
8-hour ozone and 1997 and 2006 PM2.5 NAAQS. See section 19-
0305 of the ECL.

PSD

    Section 110(a)(2)(J) also requires states to meet applicable 
requirements of Part C related to prevention of significant 
deterioration and visibility protection. EPA evaluated this requirement 
in the context of section 110(a)(2)(C) with respect to permitting (see 
discussion under (C) (program for enforcement of control measures)). 
EPA interprets this section 110 provision relating to visibility as not 
being ``triggered'' by a new NAAQS because the visibility requirements 
in part C are not changed by a new NAAQS.
    On November 17, 2010 (75 FR 70140), EPA approved the New York PSD 
program, as discussed under (C) (program for enforcement of control 
measures). The approvability of a state's PSD program in its entirety 
is essential to the approvability of the infrastructure SIP with 
respect to section 110(a)(2)(J). Therefore, EPA proposes to approve New 
York's infrastructure SIP with respect to the PSD sub-element of 
110(a)(2)(J).

K. Air Quality and 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 EPA upon request.
    Authorized pursuant to sections 3-0301, 19-0103, 19-0301, 19-0303 
and 19-0305 of the ECL, NYSDEC performs modeling as necessary to assess 
the degree of pollution in New York State. The NYSDEC certifies that 
the air quality modeling and analysis used in its SIPs complies with 
EPA's 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 EPA if requested. EPA 
proposes to find that the State has adequate authority to perform air 
quality modeling that fulfills the requirements of section 
110(a)(2)(K).

L. Permitting Fees

    Section 110(a)(2)(L) requires SIPs to require each major stationary 
source to 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 EPA's approval of the State's 
Title V operating permit program.
    EPA's full approval of the Title V program for New York became 
effective on November 30, 2001. In New York State, the Title V Permit 
Fee Program is established in ECL section 19-0311(c) requiring the 
NYSDEC to promulgate regulations that, among other things, require 
applications to identify and describe facility emissions in sufficient 
detail to establish the basis for the fees and applicability of 
requirements of the CAA. ECL section 72-0303 requires major stationary 
sources to pay operating permit program fees sufficient to support an 
appropriation approved by the legislature for the direct and indirect 
costs associated with the operating permit program established in 
section 19-0311.
    In addition, paragraph 201-6.5(a)(7) of 6 NYCRR subpart 201-6, the 
NYSDEC's approved Title V program, specifically states that ``The owner 
and/or operator of a stationary source shall pay fees to the department 
consistent with the fee schedule authorized by Subpart 482-2 of this 
Title.''
    EPA proposes to find that the State has met the requirements for 
section 110(a)(2)(L).

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.
    EPA proposes to find that the State has adequate authority and 
procedures that fulfills the requirements of section 110(a)(2)(M). See 
ECL section 3-0303(3).

VII. What action is EPA taking?

    EPA is proposing to approve New York's submittals as fully meeting 
the infrastructure requirements for the 1997 8-hour ozone and the 1997 
and 2006 PM2.5 NAAQS for the following section 110(a)(2) 
elements and sub-elements: (A), (B), (C), (D)(i)(II) prongs 3 and 4, 
(D)(ii), (E)(i), (F), (G), (H), (J), (K), (L), and (M). EPA is also 
proposing that EPA's action on October 22, 2008 (73 FR 62902) for New 
York has been satisfied.
    EPA is proposing to conditionally approve New York's submittals for 
the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS for the 
following 110(a)(2) sub-elements: E(ii) (state boards and conflict of 
interest provisions) and E(iii) (delegations). New York must commit in 
writing on or before May 30, 2013 to correct the deficiencies discussed 
above. New York must then correct the deficiencies and submit them to 
EPA within one year of EPA's final action on this SIP action. Some of 
the deficiencies involve providing information that EPA is familiar 
with and believes currently exists, but was not included in the State's 
submittal. Should New York provide this information before we take 
final rulemaking, EPA is also proposing in the alternative to fully 
approve New York's submittals for the section 110(a)(2)(E)(ii) and 
section 110(a)(2)(E)(iii) sub-elements.
    Under section 110(k)(4) of the CAA, EPA may conditionally approve a 
plan based on a commitment from a State to adopt specific enforceable 
measures by a date certain, but not later than one year from the date 
of approval. If EPA conditionally approves the commitment in a final 
rulemaking action, the State must meet its commitment to complete 
requirements of each section 110(a)(2) element listed above. If New 
York fails to do so for any section 110(a)(2) element, our conditional 
approval of that element will, by operation of law, become a 
disapproval for New York one year from the date of final approval. EPA 
will notify the State by letter that this action has occurred. At that 
time, this commitment will no longer be a part of the approved SIP for 
New York. EPA subsequently will publish a document in the Federal 
Register notifying the public that the conditional approval 
automatically converted to a disapproval. If New York meets its 
commitments within the applicable time frame, the conditionally 
approved submission will remain a part of the SIP or SIPs until EPA 
takes final action approving or disapproving the element in question.
    If EPA disapproves a State's new submittal, the conditionally 
approved section 110(a)(2) element will also be disapproved at that 
time. If EPA approves the submittal, the section 110(a)(2) element will 
be fully approved in its entirety and replace the conditionally 
approved 110(a)(2) element in the SIP. Finally, if, based on 
information received before EPA takes final action on this proposal, 
EPA determines that it cannot issue a final conditional approval for 
one or more elements for which EPA has proposed a conditional approval, 
then EPA will instead issue a disapproval for such elements.
    As discussed in section I, above, EPA is not acting on New York's 
submittal as it relates to nonattainment provisions, the NSR program 
required by part D in section 110(a)(2)(C) and the measures for 
attainment required by section 110(a)(2)(I), as part of the 
infrastructure

[[Page 25242]]

SIPs because these submittals have been addressed by other SIP 
revisions which EPA has or will be acting on in other rulemakings.
    EPA is soliciting public comments on the issues discussed in this 
proposal. These comments will be considered before EPA takes final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to the EPA Regional Office 
listed in the ADDRESSES section of this Federal Register, or by 
submitting comments electronically, by mail, or through hand delivery 
or courier following the directions in the ADDRESSES section of this 
Federal Register.

VIII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the CAA and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: April 19, 2013.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2013-10168 Filed 4-29-13; 8:45 am]
BILLING CODE 6560-50-P