[Federal Register Volume 79, Number 85 (Friday, May 2, 2014)]
[Proposed Rules]
[Pages 25066-25074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09982]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2013-0527, FRL-9910-16-Region 2]


Approval and Promulgation of Implementation Plans; New York; 
Infrastructure SIP for the 2010 Nitrogen Dioxide Primary Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve certain elements of New York's State Implementation Plan (SIP) 
revision submitted to demonstrate that the State meets the requirements 
of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2010 
National Ambient Air Quality Standard (NAAQS) for nitrogen dioxide 
(NO2). Section 110(a) of the CAA requires that each state 
adopt and submit a SIP for the implementation, maintenance and 
enforcement of each NAAQS promulgated by the EPA and is commonly 
referred to as an infrastructure SIP.

DATES: Comments must be received on or before June 2, 2014.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R02-OAR-2013-0527, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Fax: 212-637-3901.
     Mail: Richard Ruvo, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866.
     Hand Delivery: Richard Ruvo, Chief, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866. Such deliveries are only accepted 
during the Regional Office's normal hours of operation. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30 excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2013-0527. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at 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: Anthony (Ted) Gardella, Air Programs 
Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New 
York, New York 10007-1866, (212) 637-4249, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. What action is EPA proposing?
II. What is the background information?
III. What elements are required under section 110(a)(1) and (2)?
IV. What is EPA's approach to the review of infrastructure SIP 
submissions?
V. What did New York submit?
VI. How has the State addressed the elements of the section 
110(a)(1) and (2) ``infrastructure'' provisions?
VII. What action is EPA taking?
VIII. Statutory and Executive Order Reviews

I. What action is EPA proposing?

    EPA is proposing to approve certain elements of the State of New 
York Infrastructure SIP as meeting the section 110(a) infrastructure 
requirements of the Clean Air Act (CAA) for the 2010 NO2 
National Ambient Air Quality Standard (NAAQS or standard). As explained 
below, the State has the necessary infrastructure, resources, and 
general authority to implement the 2010 NO2 standard.

II. What is the background information?

    On February 9, 2010, EPA promulgated a new, 1-hour primary NAAQS 
for NO2 (2010 NO2 NAAQS) while retaining the 
annual primary NAAQS for NO2 (75 FR 6474). The 2010 
NO2 NAAQS is based on 1-hour three year average 
concentrations.\1\ The 2010 NO2 NAAQS is 100 parts per 
billion (ppb) and the new standard supplements the existing primary 
annual standard of 53 ppb. The secondary NO2 NAAQS remains 
unchanged and is the same as the primary annual average NO2 
NAAQS, i.e., 53 ppb.\2\
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    \1\ The 2010 NO2 NAAQS is expressed as the three year 
average of the 98th percentile of the annual distribution of daily 
maximum 1-hour average concentrations.
    \2\ The official level of the annual NO2 NAAQS is 
0.053 parts per million (ppm), equal to 53 ppb which is shown here 
for the purpose of clearer comparison to the 1-hour NO2 
NAAQS.
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    Section 110(a)(1) provides the procedural and timing requirements 
for State Implementation Plans (SIPs). Section 110(a)(2) lists specific 
elements that states must meet for SIP requirements related to a newly 
established or revised NAAQS. Sections 110(a)(1) and (2) of the CAA 
require, in part, that states submit to EPA plans to implement, 
maintain and enforce each of the NAAQS promulgated by EPA. By statute, 
SIPs meeting the requirements of section 110(a)(1) and (2) are to be 
submitted by states within three years

[[Page 25067]]

after promulgation of a new or revised standard. These SIPs are 
commonly called infrastructure SIPs. Based on the February 9, 2010 
promulgation date, infrastructure SIPs for the 2010 NO2 
NAAQS were due on February 9, 2013.

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

    The infrastructure requirements are listed in EPA's October 2, 
2007, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' and September 
25, 2009, memorandum entitled ``Guidance on SIP Elements Required Under 
Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards. In addition, 
in a memorandum dated September 13, 2013, EPA released new guidance 
entitled ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' \3\ 
This new guidance (2013 Guidance) addresses the 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS, 
as well as infrastructure SIPs for new or revised NAAQS promulgated in 
the future. The 14 elements required to be addressed are as follows: 
(1) Emission limits and other control measures; (2) ambient air quality 
monitoring/data system; (3) program for enforcement of control 
measures; (4) interstate transport; (5) adequate resources; (6) 
stationary source monitoring system; (7) emergency power; (8) future 
SIP revisions; (9) consultation with government officials; (10) public 
notification; (11) prevention of significant deterioration (PSD) and 
visibility protection; (12) air quality modeling/data; (13) permitting 
fees, and (14) consultation/participation by affected local entities.
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    \3\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' can 
be found at: http://www.epa.gov/airquality/urbanair/sipstatus/infrastructure.html.
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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 nonattainment planning 
requirements related to section 110(a)(2)(C) or 110(a)(2)(I).

IV. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from New York State that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 NO2 NAAQS. The requirement for states 
to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\4\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \4\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\5\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\6\ This ambiguity illustrates

[[Page 25068]]

that rather than apply all the stated requirements of section 110(a)(2) 
in a strict literal sense, EPA must determine which provisions of 
section 110(a)(2) are applicable for a particular infrastructure SIP 
submission.
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    \5\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \6\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\7\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\8\
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    \7\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \8\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants, 
for example because the content and scope of a state's infrastructure 
SIP submission to meet this element might be very different for an 
entirely new NAAQS than for a minor revision to an existing NAAQS.\9\
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    \9\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\10\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\11\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\12\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the

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applicable statutory provisions of section 110(a)(2), as appropriate.
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    \10\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \11\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \12\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
GHGs. By contrast, structural PSD program requirements do not include 
provisions that are not required under EPA's regulations at 40 CFR 
51.166 but are merely available as an option for the state, such as the 
option to provide grandfathering of complete permit applications with 
respect to the 2012 PM2.5 NAAQS. Accordingly, the latter 
optional provisions are types of provisions EPA considers irrelevant in 
the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor new source review program and whether 
the program addresses the pollutants relevant to that NAAQS. In the 
context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\13\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \13\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach 
with respect to infrastructure SIP requirements is based on a 
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA 
provides other avenues and mechanisms to address specific substantive 
deficiencies in existing SIPs. These other statutory tools allow EPA to 
take appropriately tailored action, depending upon the nature and 
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes 
EPA to issue a ``SIP call'' whenever the Agency determines that a 
state's SIP is substantially inadequate to attain or maintain the 
NAAQS, to mitigate interstate transport, or to otherwise comply with 
the CAA.\14\ Section 110(k)(6) authorizes EPA to correct errors in past 
actions, such as past approvals of SIP submissions.\15\

[[Page 25070]]

Significantly, EPA's determination that an action on a state's 
infrastructure SIP submission is not the appropriate time and place to 
address all potential existing SIP deficiencies does not preclude EPA's 
subsequent reliance on provisions in section 110(a)(2) as part of the 
basis for action to correct those deficiencies at a later time. For 
example, although it may not be appropriate to require a state to 
eliminate all existing inappropriate director's discretion provisions 
in the course of acting on an infrastructure SIP submission, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that EPA relies upon in the course of addressing such deficiency in a 
subsequent action.\16\
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    \14\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \15\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \16\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

V. What did New York submit?

    New York's section 110 infrastructure submittal was submitted by 
the New York State Department of Environmental Conservation (NYSDEC) on 
May 8, 2013, as supplemented on May 23, 2013, and addressed the 2010 
NO2 NAAQS. New York's May 2013 section 110 submittals 
demonstrate how the State, where applicable, has a plan in place that 
meets the requirements of section 110 for the 2010 NO2 
NAAQS. This plan references the current New York Air Quality SIP, the 
New York Codes of Rules and Regulations (NYCRR), the New York 
Environmental Conservation Law (ECL) and the New York Public Officer's 
Law (POL). The NYCRR, ECL and POL referenced in the submittal are 
publicly available. New York's SIP and air pollution control 
regulations that have been previously approved by EPA and incorporated 
into the New York SIP can be found at 40 CFR 52.1670 and are posted on 
the Internet at: http://www.epa.gov/region02/air/sip/ny_reg.htm.

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

    EPA compared New York's Infrastructure SIP submittals for the 2010 
NO2 NAAQS to New York's Infrastructure SIP submittals for 
the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter 
(PM2.5) NAAQS. On June 20, 2013, EPA took final action [see 
78 FR 37122] approving certain elements and sub-elements of New York's 
1997 8-hour ozone and the 1997 and 2006 PM2.5 Infrastructure 
SIPs. Based upon EPA's comparison, EPA has determined that the 
information provided in New York's 2010 NO2 Infrastructure 
SIP is nearly identical to the information provided in New York's 
Infrastructure SIP submittals for the 1997 8-hour ozone and 1997 and 
2006 PM2.5 NAAQS. Infrastructure SIPs for different criteria 
pollutants can have common aspects which are identical for each NAAQS 
(e.g., authority to promulgate emission limitations, enforcement, air 
quality modeling capabilities, adequate personnel, resources and legal 
authority). The rationale for approving certain elements of New York's 
Infrastructure SIP for NO2 is the same as the rationale for 
approving those elements of New York's 1997 8-hour ozone and 1997 and 
2006 PM2.5 Infrastructure SIPs. Since the rationale for 
approving certain elements of New York's NO2 Infrastructure 
SIP is the same as the rationale for approving certain elements of New 
York's 1997 8-hour ozone and 1997 and 2006 PM2.5 
Infrastructure SIPs, EPA is not repeating this evaluation in today's 
proposal. Instead, the reader is referred to EPA's evaluation of the 
three SIP submittals (the 1997 8-hour ozone and 1997 and 2006 
PM2.5 Infrastructure SIPs) detailed in the following three 
documents: (1) ``Technical Support Document for EPA's Proposed 
Rulemaking for the New York's State Implementation Plan Revision: State 
Implementation Plan Revision For Meeting the Infrastructure 
Requirements In the Clean Air Act Dated December 13, 2007, October 2, 
2008 and March 15, 2010'' (TSD); (2) EPA's proposed approval dated 
April 30, 2013 (78 FR 25236); and, (3) EPA's June 20, 2013 final rule 
approving certain elements of New York's Infrastructure SIPs for the 
1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS (78 FR 
37122). These three documents are available in the electronic docket 
for today's proposed action at www.regulations.gov. We are, of course, 
accepting comments on that rationale as it applies to our proposed 
approval of New York's Infrastructure SIP for the NO2 NAAQS.
    EPA is proposing approval of the following elements and sub-
elements of New York's Infrastructure SIP for NO2: 
110(a)(2)(A) [Emission limits and other control measures]; 110(a)(2)(B) 
[Ambient air quality monitoring/data system]; 110(a)(2)(C) [Program for 
enforcement of control measures]; 110(a)(2)(D) [Interstate transport]; 
110(a)(2)(E) [Adequate resources]; 110(a)(2)(F) [Stationary source 
monitoring]; 110(a)(2)(G) [Emergency power]; 110(a)(2)(H) [Future SIP 
Revisions]; 110(a)(2)(J) [Consultation with government official, public 
notification, PSD, and visibility protection]; 110(a)(2)(K) [Air 
quality and modeling/data]; 110(a)(2)(L) [Permitting fees]; 
110(a)(2)(M) [Consultation/participation by affected local entities].
    As stated above, there are certain aspects of the elements of New 
York's Infrastructure SIP for the 2010 NO2 NAAQS that are 
common to New York's 1997 8-hour ozone and 1997 and 2006 
PM2.5 Infrastructure SIPs that EPA approved on June 20, 2013 
and therefore EPA is not repeating the rationale for approving the 
following elements of New York's Infrastructure SIP for the 2010 
NO2 NAAQS in today's proposal: Elements A, D(i)(II), D(ii), 
E, F, H, I, J, K, L, and M.
    As discussed in the following sections, for those elements of New 
York's NO2 Infrastructure SIP that differ from New York's 
1997 8-hour ozone and 1997 and 2006 PM2.5 Infrastructure 
SIPs, EPA has reviewed and evaluated the aspects of those elements, 
namely elements B, C, D(i)(I) and G.
    Element B: Ambient air quality monitoring/data system: Section 
110(a)(2)(B) requires SIPs to include provisions to provide for 
establishment and operation of ambient air quality monitors, to 
monitor, compile and analyze ambient air quality data, and to make 
these data available to EPA upon request. EPA requires that states 
establish a new ambient air quality monitoring and reporting 
requirements for NO2 as follows: (1) In urban areas near 
major roads and other locations where maximum concentration is 
expected; (2) community wide monitoring in large urban areas; and (3) 
in locations where EPA identifies monitoring will help protect 
communities that are susceptible and vulnerable to NO2-
related health effects. New York addressed EPA's new monitoring 
requirements when it submitted its Annual Monitoring Network Review 
Plan (Plan) of 2013 on July 18, 2013. EPA approved this Plan on 
September 5, 2013. EPA is therefore

[[Page 25071]]

proposing to determine that New York has met the requirements of 
section 110(a)(2)(B) of the CAA with respect to the 2010 NO2 
NAAQS. A copy of New York's 2013 Monitoring Plan and EPA's September 5, 
2013 approval letter are in the docket for today's proposal at 
www.regulations.gov.
    Element C: Program for enforcement of control measures: Section 
110(a)(2)(C) requires states to have a plan that includes a program 
providing for enforcement of all SIP measures and the regulation of the 
modification and construction of any stationary source, including a 
program to meet Prevention of Significant Deterioration (PSD) of Air 
Quality and minor source new source review.
    New York's Infrastructure SIP for NO2 references the 
State's PSD and Nonattainment New Source Review (NNSR) permitting 
requirements contained in 6 NYCRR Part 231, Part 200 and Part 201. EPA 
approved these rules into the SIP on November 17, 2010 (75 FR 70140). 
New York's minor source new source review program is regulated under 
Part 201.
    EPA has reviewed and evaluated New York's Infrastructure SIP for 
the 2010 NO2 NAAQS for meeting the requirements of element 
C. While the Infrastructure SIP does not specifically reference 
NO2, it refers to the State's PSD permitting requirements in 
Part 231 which regulates oxides of nitrogen (NOX) which 
includes NO2. In addition, element C of New York's 
Infrastructure SIP for the 2010 NO2 NAAQS refers to 8-hour 
ozone. NOX is a precursor of ozone and PM2.5, and 
NO2 is one of the components of NOX. Moreover, 
the PSD portion of Part 231 regulates the construction of proposed new 
or modified facilities that are required to demonstrate in their permit 
application that allowable emission increases from the facilities, in 
conjunction with all other applicable emission increases or reductions 
(including secondary emissions), would not, among other things, cause 
or significantly contribute to air pollution in violation of any 
national ambient air quality standard \17\ in any air quality control 
region. Since NO2 is a NAAQS, the PSD provisions of Part 231 
are applicable to NO2. For these reasons, EPA concludes that 
by referencing Part 231, which is part of New York's approved SIP, New 
York's Infrastructure SIP addresses the PSD requirements of section 
110(a)(2)(C) for NO2.
---------------------------------------------------------------------------

    \17\ EPA has set NAAQS for six principal pollutants, as follows: 
Carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), 
ozone (O3), particle pollution (PM), and sulfur dioxide 
(SO2).
---------------------------------------------------------------------------

    Therefore, EPA proposes to find that the State has adequate 
authority and regulations to ensure that SIP-approved control measures 
are enforced. EPA also finds that based on the approval of New York's 
PSD program, New York has the authority to regulate the construction of 
new or modified stationary sources to meet the PSD program 
requirements. EPA is proposing to determine that New York has met the 
requirements of section 110(a)(2)(C) and (J) of the CAA with respect to 
the 2010 NO2 NAAQS. It should be noted that the PSD 
provisions of Part 231 address the requirements of section 110(a)(2)(J) 
as well as section 110(a)(2)(C).
    Element D: Interstate transport: Section 110(a)(2)(D) of the Clean 
Air Act is divided into two subsections, 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). The first of these, 110(a)(2)(D)(i), in turn, 
contains four ``prongs'' the first two of which appear in 
110(a)(2)(D)(i)(I) and the second two of which appear in 
110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) prohibit any 
source or other type of emissions activity within the State from 
emitting any air pollutants in amounts which will contribute 
significantly to nonattainment in any other state with respect to any 
primary or secondary NAAQS (prong 1), or interfere with maintenance by 
any other state with respect to any primary or secondary NAAQS (prong 
2). The two prongs in 110(a)(2)(D)(i)(II) prohibit any source or other 
type of emissions activity within the State from emitting any air 
pollutants in amounts which will interfere with measures required to be 
included in the applicable implementation plan for any other state 
under part C to prevent significant deterioration of air quality (prong 
3) or to protect visibility (prong 4). Subsection 110(a)(2)(D)(ii) 
addresses interstate and international pollution abatement, and 
requires SIPs to include provisions insuring compliance with sections 
115 and 126 of the CAA, relating to interstate and international 
pollution abatement.
    In this action, EPA is proposing to approve the 110(a)(2)(D) 
portion of the New York SIP submission and determine that the existing 
New York SIP contains provisions sufficient to satisfy all of the 
requirements of 110(a)(2)(D) for the 2010 NO2 NAAQS. With 
respect to the requirements of 110(a)(2)(D)(i)(II), i.e., prongs 3 and 
4, and 110(a)(2)(D)(ii), EPA is proposing to approve the SIP submission 
based on the rationale presented in a June 20, 2013 Federal Register 
notice approving New York's Infrastructure SIP for the 1997 8-hour 
ozone and 1997 and 2006 PM2.5 NAAQS (78 FR 37122; June 20, 
2013). As that rationale was presented in some detail in the June 20, 
2013 notice, it is not repeated in today's proposal. We are, of course, 
accepting comments on that rationale as it applies to our proposed 
approval of New York's Infrastructure SIP for the NO2 NAAQS.
    The New York SIP contains provisions to address the requirements of 
110(a)(2)(D)(i)(I), i.e. prongs 1 and 2 of 110(a)(2)(D)(i), with 
respect to the NO2 NAAQS.\18\ EPA reviewed New York's May 8, 
2013 infrastructure SIP submittal for the 2010 NO2 NAAQS 
and, based on that review and EPA's review of relevant air quality 
data, EPA is proposing to determine that New York's SIP includes 
adequate provisions to prohibit sources or other emission activities 
within the State from emitting NOX in amounts that will 
contribute significantly to nonattainment or interfere with maintenance 
by any other state with respect specifically to the NO2 
NAAQS. NO2 is a component of NOX.
---------------------------------------------------------------------------

    \18\ In accordance with the decision of the U.S. Court of 
Appeals for the District of Columbia, EPA at this time is not 
treating the 110(a)(2)(D)(i)(I) portion of the SIP submission from 
New York (which is part of the larger May 8, 2013 SIP submission for 
the 2010 NO2 NAAQS) as a required SIP submission. See EME 
Homer City Generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012), 
cert. granted 133 S.Ct. 2857 (2013). On June 24, 2013, the Supreme 
Court granted the petitions of the United States and others and 
agreed to review the merits of the D.C. Circuit decision in EME 
Homer City during the Court's 2013 term. Regardless of whether a 
particular SIP submission is considered ``required,'' however, 
section 110(k)(2) of the CAA requires EPA to act on the submission.
---------------------------------------------------------------------------

    The EPA approved New York SIP presently includes requirements for 
emissions limits on NOX including, but not limited to, Title 
6 of the New York Codes, Rules and Regulations (6 NYCRR) Parts 212, 
217, 218, 219, 220, 224, 227-2, and 249. See 40 CFR 40 CFR 52.1670(c).

--Part 212--Imposes reasonably available control technology (RACT) on 
major stationary sources not otherwise covered by other regulations.
--Part 217--Requires enhanced inspection and maintenance of light-duty 
motor vehicles.
--Part 218--Establishes emission standards for motor vehicles and motor 
vehicle engines.
--Part 219--Imposes controls on various type of incinerators.
--Part 220--Imposes RACT on emissions from cement kilns.
--Part 224--Imposes controls on NO2 emissions from nitric 
acid plants.

[[Page 25072]]

--Part 227-2--Imposes RACT on utility and industrial boilers, 
combustion turbines, stationary internal combustion engines and other 
combustion installations (major facility of NOX that 
contains an emission source type not regulated under the other Parts). 
Major facilities existing prior to June 1, 2010 must comply with new 
NOX RACT emission limits by July 1, 2014.
--Part 249--Applies best available retrofit technology (BART) to any 
stationary source that has been determined to be BART-eligible and 
whose emissions require control for the purpose of reducing regional 
haze. Part 249 requires facilities to submit source- specific BART 
proposals to New York. This rule applies to applicable BART eligible 
sources including utility boilers and industrial sources such as 
boilers, cement plants etc.

    In addition, all major stationary sources of NO2 are 
subject to the SIP-approved requirements for prevention of significant 
deterioration (PSD) and nonattainment new source review with Emission 
Offset Provisions in 6 NYCRR Part 231 which provide preconstruction 
review and permitting requirements in attainment and nonattainment 
areas. The requirements of Part 231 help ensure that no new or modified 
NO2 emitting source will cause or contribute to any 
potential exceedances of the NO2 NAAQS.
    On February 17, 2012 (77 FR 9532), EPA promulgated a rule that 
established air quality designations for all areas of the country for 
the 2010 NO2 NAAQS based on air quality monitoring data for 
the period 2008-2010. Based upon this 2008-2010 air quality monitoring 
data, EPA determined that no area of the country is violating the 2010 
NO2 NAAQS. EPA reviewed 2008-2012 NO2 air quality 
monitoring data for New York, including the Saint Regis Mohawk Tribe, 
as well as the states surrounding or bordering New York within 50 
kilometers of New York's boarders, including Vermont, Massachusetts, 
Connecticut, New Jersey, and Pennsylvania. EPA selected fifty 
kilometers from New York for reviewing design values at monitors 
because 50 kilometers is the standard distance for modeling analysis in 
EPA's Guideline on Air Quality Models (Appendix W to 40 CFR Part 51) 
and EPA is acting consistent with that Guideline. The most recent 
design values \19\ (DVs) that are computed using quality-assured and 
certified ambient air monitoring data using the Federal Reference 
method or equivalent data is reported by states, tribes and local 
agencies to EPA's Air Quality System (AQS). Data for 2008-2010, 2009-
2011 and 2010-2012 for monitors in states surrounding or bordering New 
York within 50 kilometers of New York are in Table 1 below and show 
that the DVs are well below the NAAQS for NO2. The level of 
the 1-hour NAAQS for NO2 is 100 parts per billion (ppb) and 
the form is the 3-year average of the annual 98th percentile of the 
daily 1-hour maximum. In the states surrounding and bordering New York 
within the 50 kilometers reviewed by EPA, there are no areas with 
design values for 2008-2010, 2009-2011 and 2010-2012 that exceed the 
2010 NO2 NAAQS. For example, the highest DV for 2008-2010 is 
73 (Union, NJ), well below the 100 ppb NAAQS. See Table 1 below for DVs 
surrounding and bordering New York within 50 kilometers of New York.
---------------------------------------------------------------------------

    \19\ For the most recent design values, see http://www.epa.gov/airtrends/values.html.

                      Table 1--Design Values Surrounding and Bordering New York State \20\
----------------------------------------------------------------------------------------------------------------
                                                                                     2009-2011       2010-2012
           State                   County              Site          2008-2010       Final DV        Final DV
                                                                  Final DV (ppb)       (ppb)           (ppb)
----------------------------------------------------------------------------------------------------------------
NY........................  Bronx...............     36-005-0133              67              66              63
NY........................  Erie................     36-029-0005              71  ..............  ..............
NY........................  Nassau..............     36-059-0005              57  ..............  ..............
NY........................  Queens..............     36-081-0124              68  ..............  ..............
NY........................  Steuben.............     36-101-0003  ..............              14  ..............
MA........................  Hampden.............     25-013-0016              49              50              47
MA........................  Hampshire...........     25-015-4002              28              31              27
Conn......................  Fairfield...........     09-001-9003              50  ..............  ..............
Conn......................  Hartford............     09-003-1003              45              49              46
Conn......................  New Haven...........     09-009-0027  ..............              59              57
NJ........................  Bergen..............     34-003-0006              67  ..............  ..............
NJ........................  Essex...............     34-013-1003              62              64              60
NJ........................  Hudson..............     34-017-0006  ..............              65  ..............
NJ........................  Mercer..............     34-021-0005              41  ..............  ..............
NJ........................  Middlesex...........     34-023-0011              49              48              45
NJ........................  Morris..............     34-027-3001              38              38              37
NJ........................  Union...............     34-039-0004              73              71              70
PA........................  Erie................     42-049-0003              45  ..............  ..............
PA........................  Lackawanna..........     42-069-2006              44              45              41
VT........................  Chittenden..........     50-007-0014              41  ..............  ..............
VT........................  Rutland.............     50-021-0002              41  ..............  ..............
----------------------------------------------------------------------------------------------------------------

    Based on this air quality monitoring data analysis and EPA's review 
of NOX emission trends within New York, EPA does not expect 
NOX emissions in New York to increase significantly 
particularly in light of the New York SIP approved emission limits and 
New Source Review provisions.
---------------------------------------------------------------------------

    \20\ DVs for the Saint Regis Mohawk Tribe of New York are not 
shown in Table 1 since EPA determined there is no valid data. 
Wherever there is no data shown in Table 1, EPA has no data for 
those time periods.
---------------------------------------------------------------------------

    EPA's analysis of the air quality monitoring data and emission 
trends also supports EPA's conclusion that NO2 emissions are 
not increasing significantly in the states surrounding New York and do 
not appear likely to significantly increase as a result of emissions 
from New York especially with the New York SIP approved provisions for 
NOX. EPA therefore does

[[Page 25073]]

not expect monitors identified in the table above which all have DVs 
well below the NO2 NAAQS to have difficulty maintaining the 
NAAQS for NO2. EPA proposes to conclude that New York 
emission sources are not significantly contributing to nonattainment in 
another state for the NO2 NAAQS and are not likely to 
interfere with maintenance of the NO2 NAAQS in another 
state.
    Because the 2008-2010, the 2009-2011 and also the 2010-2012 
quality-assured and certified air quality monitoring data identified 
above for areas surrounding or bordering New York State within 50 
kilometers of New York are well below the NO2 NAAQS and 
because NOX emission trends from New York sources do not 
appear to be increasing, EPA proposes to find that New York's federally 
enforceable SIP provisions with NOX emission limits for 
NOX emission sources contain adequate provisions to ensure 
New York emission sources will not interfere with maintenance or 
contribute significantly to nonattainment in another state with respect 
to the NO2 NAAQS.
    Based upon EPA's review of the air quality data and the State's 
submittal, EPA is proposing to determine that the State has met its 
obligations pursuant to 110(a)(2)(D)(i)(I) with respect to the 2010 
NO2 NAAQS.
    Element G: Emergency power: Section 110(a)(2)(G) requires states to 
provide for authority to address activities causing imminent and 
substantial endangerment to public health, including contingency plans 
to implement the emergency episode provisions in their SIPs.
    EPA requires that Infrastructure SIP submittals should meet the 
applicable contingency plan requirements of 40 CFR part 51, subpart H 
(40 CFR 51.150 through 51.153) (``Prevention of Air Pollution Emergency 
Episodes''). Subpart H requires states that have air quality control 
regions identified as either Priority I, Priority IA or Priority II to 
develop emergency episode contingency plans. States are required to 
develop emergency episode plans for any area that has monitored and 
recorded annual arithmetic mean NO2 levels greater than 100 
[micro]g/m\3\ (0.06 ppm (60 ppb)).\21\ Areas which do not meet this 
level are considered to be Priority III. 40 CFR 51.150(f). In 
accordance with the guidance, Priority III regions are not required to 
develop emergency episode plans which EPA interprets to mean the 
contingency plans otherwise required under section 51.152. 40 CFR 
51.152(c).
---------------------------------------------------------------------------

    \21\ Section 51.150, Classification of regions for episode 
plans, was last amended on July 20, 1993 (58 FR 38822) and therefore 
does not include ambient concentration levels for establishing 
Priority I Regions for the 1-hour NO2 NAAQS that was 
promulgated on February 9, 2010 (75 FR 6474).
---------------------------------------------------------------------------

    Since 2010, air-quality monitors in New York State show that annual 
arithmetic mean NO2 levels have been below the 100 [micro]g/
m\3\ (0.06 ppm (60 ppb)) threshold. In addition, since 2010, ambient 
air quality levels in New York State have been below the 1-hour 
NO2 NAAQS of 100 ppb. Based on certified and quality assured 
air quality data, New York should be classified as a Priority III 
region and, therefore, emergency episode plans for NO2 are 
not required.
    However, in general and for the NO2 standard, the 
section 110(a)(2)(G) requirements are addressed by New York's ECL, 
Articles 3 and 19, which are implemented through 6 NYCRR Part 207, 
``Control Measures for Air Pollution Episodes.'' Among other things, 6 
NYCRR Part 207 requires persons who own a significant air contamination 
source to submit a proposed episode action plan to the NYSDEC 
Commissioner, and enable the Commissioner to designate air pollution 
episodes which trigger the action plans. Pursuant to Part 207.3(a), the 
NYSDEC Commissioner shall have on file and make available the criteria 
used in determining the need to designate episodes. The NYSDEC 
maintains an ``Episode Action Plan'' with guidelines and protocols/
criteria to be followed in case of an air pollution emergency. The 
NYSDEC's Episode Action Plan has been updated to reflect the 
Significant Harm Levels (SHLs) that address the 1-hour NO2 
NAAQS proposed by EPA on July 15, 2009. Therefore, EPA proposes that 
New York has met the requirements of section 110(a)(2)(G) for the 2010 
1-hour NO2 NAAQS.

VII. What action is EPA taking?

    EPA is proposing to approve New York's submittal as fully meeting 
the infrastructure requirements for the 2010 primary NO2 
NAAQS for all section 110(a)(2) elements and sub-elements, as follows: 
(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M).
    EPA is not acting on New York's submittal as it relates to 
nonattainment provisions, the NSR program required by part D in section 
110(a)(2)(C) and the measures for attainment required by section 
110(a)(2)(I), as part of the infrastructure SIPs because the State's 
infrastructure SIP submittal does not include nonattainment 
requirements and EPA will act on them when, if necessary, they are 
submitted.
    EPA is soliciting public comments on the issues discussed in this 
proposal. These comments will be considered before EPA takes final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to the EPA Regional Office 
listed in the ADDRESSES section of this Federal Register, or by 
submitting comments electronically, by mail, or through hand delivery 
or courier following the directions in the ADDRESSES section of this 
Federal Register.

VIII. Statutory and Executive Order Reviews

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

[[Page 25074]]

health or environmental effects, using practicable and legally 
permissible methods, under Executive Order 12898 (59 FR 7629, February 
16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

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

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

    Dated: April 21, 2014.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2014-09982 Filed 5-1-14; 8:45 am]
BILLING CODE 6560-50-P