[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)]
[Proposed Rules]
[Pages 40229-40235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14523]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2016-0320; FRL-9947-96-Region 2]


Disapproval of Interstate Transport Requirements for the 2008 
Ozone National Ambient Air Quality Standards; New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
elements of New York's State Implementation Plan (SIP) submission 
regarding the infrastructure requirements of section 110(a)(1) and (2) 
of the Clean Air Act (CAA) for the 2008 ozone national ambient air 
quality standards (NAAQS). The infrastructure requirements are designed 
to ensure that the structural components of each state's air quality 
management program are adequate to meet the state's responsibilities 
under the CAA. This action pertains specifically to infrastructure 
requirements concerning interstate transport provisions.

DATES: Comments must be received on or before July 21, 2016.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2016-0320 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the Web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Environmental 
Protection Agency, 290 Broadway, 25th Floor, New York, NY 10007-1866, 
(212) 637-3702, or by email at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. EPA's Review
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background

    Section 110(a) of the CAA imposes an obligation upon states to 
submit SIPs that provide for the implementation, maintenance and 
enforcement of a new or revised NAAQS within 3 years following the 
promulgation of that NAAQS. Section 110(a)(2) lists specific 
requirements that states must meet in these SIP submissions, as 
applicable. The EPA refers to this type of SIP submission as the 
``infrastructure'' SIP because the SIP ensures that states can 
implement, maintain and enforce the air standards. Within these 
requirements, section 110(a)(2)(D)(i) contains requirements to address 
interstate transport of NAAQS pollutants. A SIP revision submitted for 
this sub-section is referred to as an ``interstate transport SIP.'' 
This rulemaking proposes action on the CAA section 110(a)(2)(D)(i) 
requirements of these submissions. In particular, section 
110(a)(2)(D)(i)(I) requires SIPs to contain adequate provisions to 
prohibit emissions from the state that will contribute significantly to 
nonattainment of the NAAQS in any other state (commonly referred to as 
prong 1), or interfere with maintenance of the NAAQS in any other state 
(prong 2). Section 110(a)(2)(D)(i)(II) requires that infrastructure 
SIPs include provisions prohibiting any source or other type of 
emissions activity in one state from interfering with measures required 
to prevent significant deterioration (PSD) of air quality (prong 3) and 
to protect visibility (prong 4) in another state.
    On March 12, 2008, EPA strengthened the NAAQS for ozone. EPA 
revised the level of the 8-hour ozone NAAQS from 0.08 parts per million 
(ppm) to 0.075 ppm. EPA also revised the secondary 8-hour standard to 
the level of 0.075 ppm making it identical to the revised primary 
standard. Infrastructure SIPs addressing the revised standard,

[[Page 40230]]

including the interstate transport requirements, were due March 12, 
2011. On April 4, 2013 the New York State Department of Environmental 
Conservation (NYSDEC) submitted a revision to its SIP to address 
requirements under section 110(a)(2) of the CAA (the infrastructure 
requirements) related to the 2008 ozone NAAQS, including interstate 
transport.
    This proposed action pertains only to the portion of the SIP 
submittal addressing section 110(a)(2)(D)(i)(I)(prongs 1 and 2), and 
section 110(a)(2)(D)(i)(II)(prong 4). EPA will address the other 
portions of the April 4, 2013 infrastructure SIP submittal, including 
section 110(a)(2)(D)(i)(II)(prong 3), in another action.

II. EPA's Review

    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) require 
New York's SIP to contain adequate provisions prohibiting 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).

Section 110(a)(2)(D)(i)(I)--Prongs 1 and 2

    In its SIP submission with respect to section 110(a)(2)(D)(i)(I) 
(prongs 1 and 2) for the 2008 ozone NAAQS, New York cited various state 
rules including its nitrogen oxides (NOX) Reasonably 
Available Control Technology (RACT) regulations to reduce emissions of 
NOX from its major stationary sources; NOX RACT 
Rules for Cement Plants, Glass Plants, Asphalt Production, and other 
general emission sources; volatile organic carbon (VOC) regulations 
that limit emissions from major and area sources; and the California 
low emission vehicle program provisions under CAA Section 177.
    In its submittal, New York indicated that, based on preliminary 
emissions inventory work, the state would achieve significant 
NOX and VOC reductions from existing emission reduction 
programs. New York estimated that, between 2007 and 2020, it will 
reduce NOX emissions by 46.6% (from 579,471 tons to 328,457 
tons). Specifically, New York estimated that NOX RACT 
limitations will result in NOX emission reductions of 28,796 
tons per year, or 78.9 tons per day from 2007 levels. With regard to 
VOCs, New York estimates that, between 2007 and 2020, it will reduce 
VOC emissions by 20.8% (from 484,440 tons in 2007 down to 368,784 tons 
in 2020).
    New York further cited preliminary screening modeling performed for 
the Ozone Transport Commission (OTC) Modeling Committee that assumed a 
48-68% decrease in NOX emissions and a 30% reduction in VOC 
emissions in New York by 2020. The modeling showed that the only 
monitors ``predicted'' to be nonattainment (outside the New York 
metropolitan nonattainment area) were located in the Philadelphia 
metropolitan area. New York asserted that the Philadelphia monitors 
would be most significantly affected by emissions from within 
Pennsylvania and other upwind states. New York indicated that they used 
the Community Multi-scale Air Quality (CMAQ) and the California 
Photochemical Grid (CALGRID) models for their analysis.
    New York also noted that its participation in the NOX 
trading programs promulgated in EPA's Clean Air Interstate Rule (CAIR) 
addressed interstate transport requirements with respect to the 1997 
ozone NAAQS. Although the State acknowledges that CAIR was remanded by 
the U.S. Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) in North Carolina v. EPA, 531 F.3d 896 (2008), the State 
indicated that it could rely on CAIR emission reductions to address 
interstate transport requirements for the 2008 ozone NAAQS because EPA 
had not yet (at the time of the submittal) developed a valid 
replacement rule. New York notes that EPA's Cross State Air Pollution 
Rule (CSAPR),\1\ which EPA intended to replace CAIR, was vacated by the 
D.C. Circuit in August 2012, and that court instructed EPA to continue 
implementation of CAIR until the EPA promulgates a valid 
replacement.\2\ New York notes that CAIR imposed an effective emissions 
rate of 0.094 lbs NOX/mmBTU on New York sources. New York 
also compares its 2011 ozone season emission NOX rates with 
NOX rates achieved in other states, noting that New York 
electric generating units (EGUs) operated at an actual NOX 
rate of 0.088 lbs NOX/mmBTU. For these reasons, New York 
concluded that it has satisfied its obligations pursuant to section 
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.
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    \1\ 76 FR 48208 (August 8, 2011).
    \2\ CSAPR was promulgated by EPA to help states reduce air 
pollution and attain and maintain CAA standards, including the 1997 
ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. On August 
21, 2012, the D.C. Circuit vacated CASPR. See EME Homer City 
Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Circuit 2012). The 
Court ordered EPA to continue administering CAIR pending the 
promulgation of a valid replacement for CSAPR. Id. at 60.
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    Finally, New York's SIP submission acknowledges that the state has 
contributed to downwind nonattainment and maintenance problems in New 
Jersey, Connecticut, Maryland, Massachusetts, Pennsylvania, Rhode 
Island, Virginia, and the District of Columbia, citing contribution 
analysis conducted when the EPA promulgated CSAPR. New York contends 
that because it shares nonattainment areas with New Jersey and 
Connecticut, and because the other states to which it has been linked 
are members of the Ozone Transport Commission, the state will address 
its obligations with respect to its contribution to nonattainment and 
interference with maintenance of the NAAQS in these states through the 
other statutory processes.
    Although New York's analysis claims that there will be substantial 
emission reductions from existing programs from 2007 to 2020, New York 
admits that those reductions are based on preliminary estimates that 
have not been updated since New York's March 2013 submission. Nor has 
the state demonstrated that the emission rates at which EGUs in the 
state operated are the result of enforceable emission limits or other 
mandatory programs such that the emission rates will not increase. 
Moreover, while the State asserts that it will achieve a 46.6% 
NOX reduction, and 20.8% VOC reduction during that time 
period, New York's modeling used higher levels of assumed reductions, 
assuming 48% NOX reductions and 30% VOC reductions without 
demonstrating how it will achieve those higher levels of emissions 
reductions. Even assuming these projected emissions reductions were 
reliable, New York's modeling shows ``predicted'' nonattainment in

[[Page 40231]]

Connecticut, New Jersey, and Pennsylvania. New York does not adequately 
explain how it concludes that New York emissions do not significantly 
contribute to these predicted exceedances. The fact that the State 
might have certain planning obligations with respect to areas in these 
states under other statutory provisions does not absolve the State of 
its obligation to address the planning requirements of section 
110(a)(2)(D)(i)(I).
    By only evaluating areas with predicted nonattainment in 2020, New 
York has also failed to address the State's potential interference with 
maintenance of the 2008 ozone NAAQS in downwind states. In remanding 
CAIR to the EPA in the North Carolina decision, the D.C. Circuit 
explained that the regulating authority must give the ``interfere with 
maintenance'' clause of section 110(a)(2)(D)(i)(I) ``independent 
significance'' by evaluating the impact of upwind state emissions on 
downwind areas that, while currently in attainment, are at risk of 
future nonattainment, considering historic variability. 531 F.3d at 
910-911. New York's analysis does not give the ``interfere with 
maintenance'' clause of section 110(a)(2)(D)(i)(I) independent 
significance because its analysis did not attempt to evaluate the 
potential impact of New York emissions on areas that are currently 
measuring clean data, but that may have issues maintaining that air 
quality.
    Furthermore, the 2020 projection year New York chose for its 
modeling and by which the State asserts it will achieve substantial 
NOX reductions is two years later than the moderate area 
attainment date for the 2008 ozone NAAQS, which is July 11, 2018. Among 
other things, the court's decision in North Carolina, clarified that, 
to the extent possible, upwind emissions reductions necessary to 
address the interstate transport of air pollution should be aligned 
with the attainment dates for downwind nonattainment areas. 531 F.3d at 
912. New York has not demonstrated either that the State's SIP is 
adequate to address interstate transport by the downwind attainment 
date for the 2008 ozone NAAQS or that emissions reductions necessary to 
address interstate transport are not practically feasible until 2020.
    Among the emissions reductions cited by New York in its SIP, the 
State cites its participation in CAIR as a control measure that results 
in control of NOX emissions within the State. New York notes 
that under CAIR, New York EGUs were subject to both the ozone season 
NOX emissions trading program and the annual NOX 
emissions trading program. The CAIR ozone season NOX 
emissions trading program was intended to address interstate transport 
of air pollution for the 1997 ozone NAAQS. The CAIR annual 
NOX emissions trading program, along with the annual sulfur 
dioxide (SO2) trading program, was intended to address 
interstate transport of air pollution for the 1997 fine particulate 
matter (PM2.5) NAAQS.
    Although New York correctly notes that the North Carolina decision 
kept CAIR in place temporarily while EPA developed a replacement, and 
that the D.C. Circuit later issued a decision vacating that 
replacement, CSAPR, and requiring continued implementation of CAIR, the 
EPA does not agree that it is appropriate to rely on CAIR for purposes 
of addressing interstate transport with respect to the 2008 ozone 
NAAQS. First, EPA designed CAIR to address the 1997 ozone NAAQS, but 
not the more stringent 2008 ozone standard at issue here. It is not 
sufficient to merely cite evidence of compliance with older programs 
such as CAIR or measures implemented for prior ozone NAAQS as a means 
for satisfying interstate transport obligations for the 2008 ozone 
NAAQS.
    More importantly, in North Carolina, the D.C. Circuit held that 
CAIR was ``fundamentally flawed,'' 531 F.3d at 929, in part because 
CAIR did not satisfy the statutory requirement to ``achieve something 
measurable towards the goal of prohibiting sources `within the State' 
from contributing to nonattainment or interfering with maintenance in 
`any other State.' '' Id. at 908. Accordingly, the D.C. Circuit held in 
EME Homer City Generation, L.P. v. EPA, ``when our decision in North 
Carolina deemed CAIR to be an invalid effort to implement the 
requirements of the good neighbor provision, that ruling meant that the 
initial approval of the CAIR SIPs was in error at the time it was 
done.'' 795 F.3d 118, 133 (2015). For these reasons, the EPA cannot now 
approve an interstate transport SIP addressing any NAAQS based on the 
state's participation in CAIR.
    Regardless of CAIR's infirmities, the rule is no longer being 
implemented. Subsequent to New York's submission of its SIP, on April 
29, 2014, the U.S. Supreme Court reversed that D.C. Circuit decision 
vacating CSAPR and remanded the case to the D.C. Circuit for further 
proceedings. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014). On October 23, 2014, the D.C. Circuit granted our motion to 
lift the judicial stay on CSAPR and delay compliance deadlines by three 
years. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. 
Oct. 23, 2014), Order at 3. Consistent with the Court's order we issued 
an interim final rule amending CSAPR so that compliance could begin in 
an orderly manner on January 1, 2015 (79 FR 71663, December 3, 2014), 
replacing CAIR. On July 28, 2015, the D.C. Circuit issued its decision 
on the issues raised on remand from the Supreme Court. The court denied 
all of petitioners' facial challenges to CSAPR, but remanded several 
emissions budgets to the EPA for reconsideration. EME Homer City 
Generation, L.P v. EPA, 795 F.3d 118 (D.C. Cir. 2015). A final rule 
making the revised CSAPR implementation schedule permanent was issued 
on March 14, 2016. 81 FR 13275. Accordingly, CAIR implementation ended 
in 2014 and CSAPR implementation began in 2015. States and the EPA are 
no longer implementing the CAIR trading programs. Thus, it is no longer 
appropriate for states to rely on the emissions reductions achieved by 
compliance with CAIR to satisfy emission reduction obligations.
    EPA has recently shared technical information with states to 
facilitate their efforts to address interstate transport requirements 
for the 2008 ozone NAAQS. EPA developed this technical information 
following the same approach used to evaluate interstate contribution in 
CSAPR in order to support the recently proposed Cross-State Air 
Pollution Rule Update for the 2008 Ozone NAAQS, 80 FR 75706 (Dec. 3, 
2015) (``CSAPR Update Rule''). In CSAPR, EPA used detailed air quality 
analyses to determine whether an eastern state's contribution to 
downwind air quality problems was at or above specific thresholds. If a 
state's contribution did not exceed the specified air quality screening 
threshold, the state was not considered ``linked'' to identified 
downwind nonattainment and maintenance receptors and was therefore not 
considered to significantly contribute or interfere with maintenance of 
the standard in those downwind areas. If a state exceeded that 
threshold, the state's emissions were further evaluated, taking into 
account both air quality and cost considerations, to determine what, if 
any, emissions reductions might be necessary. For the reasons stated 
below, we believe it is appropriate to use the same approach we used in 
CSAPR to establish an air quality screening threshold for the 
evaluation of interstate transport requirements for the 2008 ozone 
standard.
    In CSAPR, EPA proposed an air quality screening threshold of one

[[Page 40232]]

percent of the applicable NAAQS and requested comment on whether one 
percent was appropriate. EPA evaluated the comments received and 
ultimately determined that one percent was an appropriately low 
threshold because there were important, even if relatively small, 
contributions to identified nonattainment and maintenance receptors 
from multiple upwind states. In response to commenters who advocated a 
higher or lower threshold than one percent, EPA compiled the 
contribution modeling results for CSAPR to analyze the impact of 
different possible thresholds for the eastern United States. EPA's 
analysis showed that the one-percent threshold captures a high 
percentage of the total pollution transport affecting downwind states, 
while the use of higher thresholds would exclude increasingly larger 
percentages of total transport. For example, at a five percent 
threshold, the majority of interstate pollution transport affecting 
downwind receptors would be excluded. In addition, EPA determined that 
it was important to use a relatively lower one-percent threshold 
because there are adverse health impacts associated with ambient ozone 
even at low levels. EPA also determined that a lower threshold such as 
0.5 percent would result in relatively modest increases in the overall 
percentages of fine particulate matter and ozone pollution transport 
captured relative to the amounts captured at the one-percent level. EPA 
determined that a ``0.5 percent threshold could lead to emission 
reduction responsibilities in additional states that individually have 
a very small impact on those receptors--an indicator that emission 
controls in those states are likely to have a smaller air quality 
impact at the downwind receptor. We are not convinced that selecting a 
threshold below one percent is necessary or desirable.''
    In the final CSAPR, EPA determined that one percent was a 
reasonable choice considering the combined downwind impact of multiple 
upwind states in the eastern United States, the health effects of low 
levels of fine particulate matter and ozone pollution, and EPA's 
previous use of a one-percent threshold in CAIR. EPA used a single 
``bright line'' air quality threshold equal to one percent of the 1997 
8-hour ozone standard, or 0.08 ppm. The projected contribution from 
each state was averaged over multiple days with projected high modeled 
ozone, and then compared to the one-percent threshold. We concluded 
that this approach for setting and applying the air quality threshold 
for ozone was appropriate because it provided a robust metric, was 
consistent with the approach for fine particulate matter used in CSAPR, 
and because it took into account, and would be applicable to, any 
future ozone standards below 0.08 ppm. EPA has subsequently proposed to 
use the same threshold for purposes of evaluating interstate transport 
with respect to the 2008 ozone standard in the CSAPR Update Rule.
    On August 4, 2015, EPA issued a Notice of Data Availability (NODA) 
containing air quality modeling data that applies the CSAPR approach to 
contribution projections for the year 2017 for the 2008 8-hour ozone 
NAAQS.\3\ The modeling data released in this NODA was also used to 
support the proposed CSAPR Update Rule. The moderate area attainment 
date for the 2008 ozone standard is July 11, 2018. In order to 
demonstrate attainment by this attainment deadline, states will use 
2015 through 2017 ambient ozone data. Therefore, EPA proposed that 2017 
is an appropriate future year to model for the purpose of examining 
interstate transport for the 2008 ozone NAAQS. EPA used photochemical 
air quality modeling to project ozone concentrations at air quality 
monitoring sites to 2017 and estimated state-by-state ozone 
contributions to those 2017 concentrations. This modeling used the 
Comprehensive Air Quality Model with Extensions (CAMx version 6.11) to 
model the 2011 base year and the 2017 future base case emissions 
scenarios to identify projected nonattainment and maintenance sites 
with respect to the 2008 ozone NAAQS in 2017. EPA used nationwide 
state-level ozone source apportionment modeling (CAMx Ozone Source 
Apportionment Technology/Anthropogenic Precursor Culpability Analysis 
technique) to quantify the contribution of 2017 base case 
NOX and VOC emissions from all sources in each state to the 
2017 projected receptors. The air quality model runs were performed for 
a modeling domain that covers the 48 contiguous United States and 
adjacent portions of Canada and Mexico. The NODA and the supporting 
technical support documents have been included in the docket for this 
SIP action. The modeling data released in the NODA on August 4, 2015 
and the CSAPR Update are the most up-to-date information EPA has 
developed to inform our analysis of upwind state linkages to downwind 
air quality problems. As discussed in the CSAPR Update proposal for the 
2008 ozone NAAQS, the air quality modeling (1) identified locations in 
the U.S. where EPA expects nonattainment or maintenance problems in 
2017 for the 2008 ozone NAAQS (i.e., nonattainment or maintenance 
receptors), and (2) quantified the projected contributions of emissions 
from upwind states to downwind ozone concentrations at those receptors 
in 2017 (80 FR 75706, 75720-30, December 3, 2015). Consistent with 
CSAPR, EPA proposed to use a threshold of 1 percent of the 2008 ozone 
NAAQS (0.75 parts per billion) to identify linkages between upwind 
states and downwind nonattainment or maintenance receptors. EPA 
proposed that eastern states with contributions to a specific receptor 
that meet or exceed this screening threshold are considered ``linked'' 
to that receptor, and were analyzed further to quantify available 
emissions reductions necessary to address interstate transport to these 
receptors.
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    \3\ Notice of Availability of the Environmental Protection 
Agency's Updated Ozone Transport Modeling Data for the 2008 Ozone 
National Ambient Air Quality Standard (NAAQS), 80 FR 46271 (August 
4, 2015).
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    The results of EPA's air quality modeling with respect to New York 
is summarized in Table 1 below.\4\ That modeling indicates that 
emissions from New York are linked to both nonattainment and 
maintenance receptors in downwind states.
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    \4\ These data also appear in Table V.D-1 of the CSAPR Update 
proposal. See 80 FR at 75727.

                              Table 1--CSAPR Update Proposal Contributions to Downwind Nonattainment and Maintenance Areas
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                                                                                          Downwind
                                      Largest contribution   Largest contribution      nonattainment         Downwind maintenance receptors located in
               State                    to nonattainment        to maintenance      receptors located in                      states
                                                                                           states
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New York...........................  16.96 ppb............  17.21 ppb............  Connecticut..........  Connecticut and New Jersey.
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[[Page 40233]]

    As noted above, New York provided information documenting 
significant emission reductions that have been made throughout the 
state beginning in 1995 and additional emission reductions expected to 
occur by 2020. These controls have resulted in significant reductions 
in NOX emissions in New York and undoubtedly have reduced 
the amount of transported pollution to other states. However, many of 
the emission reductions achieved through these measures were accounted 
for in the EPA's modeling baseline of 2011 used to evaluate interstate 
transport with respect to the 2008 ozone NAAQS, and further accounted 
for in EPA's modeling projections to 2017. Accordingly, the most recent 
technical analysis available to the EPA contradicts New York's 
conclusion that the state's SIP contains adequate provisions to address 
interstate transport as to the 2008 ozone standard. Furthermore, New 
York did not demonstrate how these rules and data developed for 
different purposes provide sufficient controls on emissions to address 
interstate transport for the 2008 ozone NAAQS. Despite the substantial 
emissions reductions achieved by New York, we have subsequently 
published information and proposed an update to CSAPR that addresses 
the 2008 ozone NAAQS that demonstrates New York emissions still have an 
impact on other states.
    EPA is proposing to disapprove the 2008 ozone New York 
Infrastructure SIP submission for both the prong 1 and prong 2 
requirements of CAA section 110(a)(2)(D)(i)(I). As explained above, the 
SIP submission does not provide an adequate technical analysis 
demonstrating that the state's SIP contains adequate provisions 
prohibiting emissions that will significantly contribute to 
nonattainment or interfere with the 2008 ozone NAAQS in any other 
state. Moreover, EPA's most recent modeling indicates that emissions 
from New York are projected to significantly contribute to downwind 
nonattainment and maintenance receptors in other states.\5\
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    \5\ New York and others interested parties have provided 
comments on both the NODA and proposed CSAPR Update Rule. See Docket 
No. EPA-HQ-OAR-2015-0500 at http://www.regulations.gov. We will 
consider these comments in final rulemaking on the CSAPR Update 
Rule. Even absent this data, New York's SIP failed to adequately 
address the requirements of CAA section 110(a)(2)(D)(i)(I) with 
respect to the 2008 ozone NAAQS.
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Section 110(a)(2)(D)(i)(II)--Prong 4

    In this action, EPA is proposing that New York satisfies the 
110(a)(2)(D)(i)(II) requirement for visibility (or prong 4). New York 
addresses visibility protection requirements for the 2008 ozone NAAQS 
through its Regional Haze SIP. EPA approved New York's Regional Haze 
SIP submittal (August 28, 2012, 77 FR 51915) as part of New York's SIP. 
The regional haze rule requires that a state participating in a 
regional planning process include all measures needed to achieve its 
apportionment of emission reduction obligations agreed upon through 
that process. Thus, New York's approved Regional Haze SIP ensures that 
emissions from sources within the State are not interfering with 
measures to protect visibility in other states.
    EPA's notes that New York's Regional Haze SIP was supplemented with 
a FIP by EPA for three units at two sources where EPA disapproved the 
Best Available Retrofit Technology (BART) determinations for those 
units. In our August 2012 rulemaking, EPA promulgated a FIP to address 
our disapproval of BART determinations for Roseton Generating Station 
Units 1 and 2 and Danskammer Generating Station's Unit 4. 77 FR 51915 
(Aug. 28, 2012). The additional emission reductions under the FIP were, 
however, not necessary to demonstrate that New York met its share of 
the emissions reductions sufficient to meet reasonable progress goals 
(found at 40 CFR 51.308 (d)(1)) at Class I areas affected by New York's 
emissions. EPA fully approved that aspect of New York's Regional Haze 
SIP. EPA's analysis demonstrating that New York had met its share of 
its regional emissions reductions can be found in the Regional Haze 
Technical Support document, which is available in the docket for the 
rule.
    Since EPA's action on New York's Regional Haze Plan, the Title V 
permits for Danskammer and Roseton have been updated by New York to 
incorporate the FIP limits established by EPA. The Title V permit for 
Danskammer was submitted to EPA as a SIP revision on August 20, 2015.

III. What action is EPA taking?

    EPA is proposing to disapprove the portion of the April 4, 2013 New 
York SIP submittal pertaining to the requirements of CAA section 
110(a)(2)(D)(i)(I) regarding interstate transport of air pollution that 
will significantly contribute to nonattainment or interfere with 
maintenance of the 2008 ozone NAAQS (i.e., CAA section 110 
(a)(2)(D)(i)(I) (prongs 1 and 2)) in other states. Disapproval will 
establish a 2-year deadline for EPA to promulgate a FIP to address New 
York's CAA interstate transport requirements pertaining to significant 
contribution to nonattainment and interference with maintenance unless 
the State submits, and EPA approves a SIP that meets these requirements 
(per section 110(c)(1) of the CAA). Disapproval does not start a 
mandatory sanctions clock pursuant to CAA section 179 because this 
action does not pertain to either a part D plan for nonattainment areas 
required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA 
section 110(k)(5).
    EPA is proposing approval of the portion of the April 4, 2013 New 
York SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(II) 
requirement for visibility (or prong 4).
    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 following the directions in the ADDRESSES section of this 
Federal Register.

IV. Statutory and Executive Order Reviews

a. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) 
and is therefore not subject to review under the E.O.

b. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed partial approval and partial disapproval of SIP 
revisions under CAA section 110 will not in-and-of itself create any 
new information collection burdens but simply proposes to approve 
certain State requirements, and to disapprove certain other State 
requirements, for inclusion into the SIP. Burden is defined at 5 CFR 
1320.3(b).

c. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business

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Administration's (SBA) regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule, we 
certify that this proposed action will not have a significant impact on 
a substantial number of small entities. This proposed rule does not 
impose any requirements or create impacts on small entities. This 
proposed partial SIP approval and partial SIP disapproval under CAA 
section 110 will not in-and-of itself create any new requirements but 
simply proposes to approve certain State requirements, and to 
disapprove certain other State requirements, for inclusion into the 
SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. Therefore, this 
action will not have a significant economic impact on a substantial 
number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

d. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. EPA has determined that the proposed partial approval and 
partial disapproval action does not include a Federal mandate that may 
result in estimated costs of $100 million or more to either state, 
local, or tribal governments in the aggregate, or to the private 
sector. This action proposes to approve certain pre-existing 
requirements, and to disapprove certain other pre-existing 
requirements, under state or local law, and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this proposed 
action.

e. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely proposes to 
approve certain state requirements, and to disapprove certain other 
State requirements, for inclusion into the SIP and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. Thus, Executive Order 13132 does not 
apply to this action.

f. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
on which EPA is proposing action would not 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. Thus, 
Executive Order 13175 does not apply to this proposed action.

g. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
proposed action is not subject to Executive Order 13045 because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This proposed partial approval and partial disapproval under CAA 
section 110 will not in-and-of itself create any new regulations but 
simply proposes to approve certain state requirements, and to 
disapprove certain other state requirements, for inclusion into the 
SIP.

h. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211 (66 FR 
28355, May 22, 2001) because it is not a significant regulatory action 
under Executive Order 12866.

i. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    EPA believes that this proposed action is not subject to 
requirements of Section 12(d) of NTTAA because application of those 
requirements would be inconsistent with the Clean Air Act.

j. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Population

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the Clean Air Act. Accordingly, this action merely proposes to 
partially approve and partially disapprove certain state requirements 
for inclusion into the SIP under section 110(a) of the CAA and will not 
in-and-of itself create any new requirements. Accordingly, it does not 
provide EPA with the discretionary

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authority to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898.

List of Subjects in 40 CFR Part 52

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

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

    Dated: June 13, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016-14523 Filed 6-20-16; 8:45 am]
 BILLING CODE 6560-50-P