[Federal Register Volume 79, Number 177 (Friday, September 12, 2014)]
[Rules and Regulations]
[Pages 54617-54619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21682]



40 CFR Part 52

[EPA-R02-OAR-2013-0527; FRL-9916-49-Region 2]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is approving certain 
elements of New York's State Implementation Plan (SIP) revisions 
submitted to demonstrate that the State meets the requirements of 
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: This rule is effective on October 14, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R02-OAR-2013-0527. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
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. The Air Programs Branch dockets are 
available from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The Air Programs Branch telephone number is 212-637-

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs 
Branch, Environmental Protection Agency, Region 2, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-4249, or by email at 
[email protected].


I. What is the background information and purpose of this action?

    Under CAA section 110(a)(1), states are required to submit plans 
called state implementation plans (SIPs) that provide for the 
implementation, maintenance and enforcement of each NAAQS and are 
referred to as infrastructure SIPs. 42 U.S.C. 7410(a)(1). 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). Under CAA section 110(a)(2), the 14 
elements required to be addressed in infrastructure SIPs 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.
    EPA is acting on New York's SIP submittal dated May 8, 2013, as 
supplemented on May 23, 2013, which addresses the section 110 
infrastructure requirements for the 2010 NO2 NAAQS. Two 
elements identified in section 110(a)(2) are not governed by the three 
year submission deadline of section 110(a)(1) because SIPs 
incorporating necessary local nonattainment area controls are not due 
within three 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 CAA section 191. (See also CAA section 172 for 
general nonattainment plan requirements). 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 
area plan requirements related to section 110(a)(2)(C) or 110(a)(2)(I).

II. What comments did EPA receive in response to its proposal?

    EPA received one anonymous adverse comment on the May 2, 2014 (79 
FR 25066) rulemaking proposing to approve New York's SIP submittal. EPA 
has evaluated the comment as discussed below and has determined that 
New York's SIP revision addressing the 2010 NO2 NAAQS is 
consistent with the CAA and therefore EPA is approving New York's SIP 
revision into the New York SIP. Following is the comment and EPA's 
    Comment: The commenter states that EPA cannot approve New York's 
interstate transport provision addressed in its 2010 NO2 
NAAQS infrastructure SIP revision because, according to the commenter, 
the Supreme Court decision in EME Homer City v. EPA ``requires SIPs to 
`contain adequate provisions prohibiting any source or emissions 
activity within the State from emitting ANY pollutants in amounts which 
will contribute to nonattainment in, or interfere with maintenance by, 
any other State with respect to any other State with respect to ANY 
[NAAQS].' (emphasis on `any').'' The commenter also quotes from EPA's 
May 2, 2014 rulemaking which proposes to approve New York's 2010 
NO2 infrastructure SIP revision and states that 
NOX is a precursor for ozone and PM2.5 and that 
NO2 is a component of NOX. The commenter states 
that because of the aforementioned Supreme Court decision, EPA must 
evaluate New York's 2010 NO2 infrastructure SIP revision 
submission, as it relates to interstate transport, with respect to all 
NAAQS and not just for the 2010 NO2 NAAQS.
    Response: This comment addresses the requirements of CAA section 
110(a)(2)(D)(i)(I). This provision, often referred to as the good 
neighbor provision, requires each State Implementation Plan to 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 or interfere with maintenance by, any 
other state with respect to any . . . primary or secondary [NAAQS].'' 
42 U.S.C. 7410(a)(2)(D)(i). The recent Supreme Court decision in 
Environmental Protection Agency v. EME Homer City Generation, L.P., 134 
S. Ct. 1584 (2014), addressed the requirements of this provision and 
reversed the prior DC Circuit decision vacating EPA's Cross-State Air 
Pollution Rule. The commenter quotes from the section of the Supreme 
Court decision that

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discusses the historical development (from 1963 onward) of EPA's 
interstate transport policy (also referred to as the `Good Neighbor' 
Provision). The quoted language essentially tracks the statutory text 
of CAA Section 110(a)(2)(D)(i)(I), which describes specific elements 
that must be included in State Implementation Plans to address 
pollution that is transported across state lines. As the Supreme Court 
decision in EME Homer City confirmed, pursuant to CAA section 
110(a)(1), state plans to address these requirements must be submitted 
to the Administrator within three years of the promulgation or revision 
of a NAAQS. EME Homer City, 134 S. Ct. at 1600.
    EPA interprets the comment as stating that the 110(a)(2)(D)(i)(I) 
provisions of New York's 2010 NO2 infrastructure SIP should 
address, in addition to emissions that significantly contribute to 
nonattainment or interfere with maintenance of the NO2 
NAAQS, any emissions that significantly contribute to nonattainment or 
interfere with maintenance of all other NAAQS, particularly the NAAQS 
for ozone and PM2.5 since NO2 is a component of 
NOX and NOX is a precursor for ozone and 
PM2.5. EPA disagrees. Because it is the promulgation or 
revision of a NAAQS that triggers the requirement to submit a SIP 
addressing the requirements of 110(a)(2)(D)(i)(I), EPA interprets the 
CAA as requiring each such SIP to address the 110(a)(2)(D)(i)(I) 
requirements only with respect to the specific NAAQS at issue. In other 
words, each 110(a)(2)(D)(i)(I) SIP submission need only address the 
specific NAAQS which had been promulgated or revised by EPA thereby 
triggering the SIP submission requirement. Because New York submitted 
this SIP to address the applicable requirements of 110(a)(2) with 
respect to the 2010 NO2 NAAQS, it need only demonstrate that 
the SIP is adequate to prohibit emissions that significantly contribute 
to nonattainment or interfere with maintenance of the 2010 
NO2 NAAQS in other states. Any emissions that have such 
impacts with respect to other NAAQS must be addressed as appropriate in 
the 110(a)(2)(D)(i)(I) SIP submissions for those other NAAQS. In its 
May 8, 2013 action, EPA proposed to conclude that New York's May 8, 
2013 infrastructure SIP revision, as supplemented on May 23, 2013, 
addressed all applicable CAA infrastructure SIP requirements, including 
the requirements of 110(a)(2)(D)(i)(I), with respect to the 
NO2 NAAQS. 79 FR 25066, 25071-25073. The commenter has 
offered no data or evidence to suggest that the submission does not do 

III. What is the impact of the June 2014 Supreme Court Green House Gas 
decision on New York's infrastructure SIP for the 2010 NO2 

    With respect to Elements C and J, EPA interprets the Clean Air Act 
to require each state to make an infrastructure SIP submission for a 
new or revised NAAQS that demonstrates that the air agency has a 
complete PSD permitting program meeting the current requirements for 
all regulated NSR pollutants. The requirements of Element D(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
New York has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including greenhouse gases (GHGs).
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT). In order to act consistently with 
its understanding of the Court's decision pending further judicial 
action to effectuate the decision, the EPA is not continuing to apply 
EPA regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
EPA is not applying the requirement that a state's SIP-approved PSD 
program require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision. The 
timing and content of subsequent EPA actions with respect to the EPA 
regulations and state PSD program approvals are expected to be informed 
by additional legal process before the United States District Court for 
the District of Columbia Circuit. At this juncture, EPA is not 
expecting states to have revised their PSD programs for purposes of 
infrastructure SIP submissions and is only evaluating such submissions 
to assure that the state's program correctly addresses GHGs consistent 
with the Supreme Court's decision.
    At present, EPA has determined the New York SIP is sufficient to 
satisfy Elements C, D(i)(II), and J with respect to GHGs because the 
PSD permitting program previously-approved by EPA into the SIP 
continues to require that PSD permits (otherwise required based on 
emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT. Although the approved New 
York PSD permitting program may currently contain provisions that are 
no longer necessary in light of the Supreme Court decision, this does 
not render the infrastructure SIP submission inadequate to satisfy 
Elements C, D(i)(II), and J. The SIP contains the necessary PSD 
requirements at this time, and the application of those requirements is 
not impeded by the presence of other previously-approved provisions 
regarding the permitting of sources of GHGs that EPA does not consider 
necessary at this time in light of the Supreme Court decision. 
Accordingly, the Supreme Court decision does not affect EPA's proposed 
approval of New York's infrastructure SIP as to the requirements of 
Elements C, D(i)(II), and J.

IV. What action is EPA taking?

    EPA is approving New York's submittal as fully meeting the 
applicable infrastructure requirements for the 2010 primary 
NO2 NAAQS for the following section 110(a)(2) elements: (A), 
(B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M).
    As stated above, this action does not address the nonattainment 
area plan requirements related to sections 110(a)(2)(C) or 
110(a)(2)(I). EPA will act on them when they become due and are 

V. 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 Act 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

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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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 12, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

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.

    Dated: September 2, 2014.
Judith A. Enck,
Regional Administrator, Region 2.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:


1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

2. Section 52.1670 is amended by adding a new entry to the end of the 
table in paragraph (e) to read as follows:

Sec.  52.1670  Identification of plan.

* * * * *
    (e) * * *

                       Epa-Approved New York Nonregulatory and Quasi-Regulatory Provisions
                                   geographic or         New York
       Action/SIP element          nonattainment      submittal date   EPA approval date        Explanation
                                                  * * * * * * *
Section 110(a)(2)                Statewide........  5/08/13, and       9/12/14 [Insert    This action addresses
 Infrastructure Requirements                         supplemented on    Federal Register   the following CAA
 for the 2010 Primary Nitrogen                       5/23/13.           citation].         elements:
 Dioxide NAAQS.                                                                            110(a)(2)(A), (B),
                                                                                           (C), (D), (E), (F),
                                                                                           (G), (H), (J), (K),
                                                                                           (L), and (M).

[FR Doc. 2014-21682 Filed 9-11-14; 8:45 am]