[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]
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ENVIRONMENTAL PROTECTION AGENCY
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.
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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-
4249.
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].
SUPPLEMENTARY INFORMATION:
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
response.
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
[[Page 54618]]
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
so.
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
NAAQS?
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
submitted.
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
[[Page 54619]]
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.
804(2).
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:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart HH--New York
0
2. 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
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Applicable
geographic or New York
Action/SIP element nonattainment submittal date EPA approval date Explanation
area
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* * * * * * *
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).
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[FR Doc. 2014-21682 Filed 9-11-14; 8:45 am]
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