[Federal Register Volume 81, Number 166 (Friday, August 26, 2016)]
[Rules and Regulations]
[Pages 58849-58855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20411]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2016-0320; FRL-9951-49-Region 2]


Partial Approval and Partial Disapproval of Air Quality 
Implementation Plans; New York; Interstate Transport Infrastructure SIP 
Requirements for the 2008 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is partially 
approving and partially disapproving elements of a New York State 
Implementation Plan (SIP) submittal pertaining to the infrastructure 
requirements of section 110 of the Clean Air Act (CAA) for the 2008 
ozone National Ambient Air Quality Standard (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: This rule is effective on September 26, 2016.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R02-OAR-2016-0320. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information 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. Publicly available docket materials are available 
either electronically through http://www.regulations.gov or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional information.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, 212-637-3702, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we'', ``us'', 
and ``our'' means EPA.

I. Background
II. What action did EPA propose on the SIP submission?
III. What comments did EPA receive in response to its proposal?
IV. What action is EPA taking?
V. What are the consequences of a disapproved SIP?
VI. Statutory and Executive Order Reviews

I. Background

    This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements 
in New York's infrastructure SIP submitted on April 4, 2013 to address 
applicable infrastructure requirements with respect to the 2008 ozone 
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 
commonly refers to such state plans as ``infrastructure SIPs.'' In 
particular, section 110(a)(2)(D)(i)(I) requires SIPs to include 
provisions prohibiting any source or other type of emissions activity 
in one state from contributing significantly to nonattainment of the 
NAAQS (commonly referred to as prong 1), or interfering with 
maintenance of the NAAQS (prong 2), in any another state. Section 
110(a)(2)(D)(i)(II) requires SIPs to 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. This rulemaking addresses prongs 1, 2, and 4 of CAA 
section 110(a)(2)(D)(i). EPA will address the other portions of the 
April 4, 2013 infrastructure SIP submittal, including prong 3 
pertaining to CAA section 110(a)(2)(D)(i)(II), in another action.

II. What action did EPA propose on the SIP submission?

    The proposed rulemaking associated with this final action was 
published on June 21, 2016 (81 FR 40229). In that action, EPA proposed 
to disapprove the portions of New York's April 4, 2013

[[Page 58850]]

SIP submission addressing prongs 1 and 2, and proposed to approve prong 
4 regarding CAA section 110(a)(2)(D)(i) requirements.
    In proposing to disapprove the SIP submission as to prongs 1 and 2, 
EPA noted several deficiencies in New York's submission: (1) New York's 
own modeling showed ``predicted'' nonattainment in the bordering states 
of Connecticut, New Jersey, and Pennsylvania, but did not adequately 
explain its conclusion that New York emissions will not significantly 
contribute to those predicted exceedances; (2) the emissions reductions 
cited in New York's submission were based on preliminary emissions 
estimates, and were below the assumed emissions reductions that were 
used in New York's cited preliminary screening modeling performed for 
the Ozone Transport Commission; (3) the submission used a projection 
year (2020) to model downwind air quality that is two years beyond the 
July 11, 2018 moderate area attainment date for the 2008 ozone NAAQS; 
(4) the submission failed to address prong 2, the State's potential 
interference with maintenance of the 2008 ozone NAAQS in other states; 
(5) the submission did not demonstrate that the emission rates at which 
Electric Generating Units (EGUs) in the state operated were the result 
of enforceable emission limits or other mandatory programs such that 
the emission rate would not increase; (6) New York's submission relied 
on the state's implementation of the Clean Air Interstate Rule (CAIR), 
which was not designed to address interstate transport with respect to 
the 2008 ozone standard and is no longer being implemented by the 
states and EPA; and (7) EPA recently released technical data that 
contradicts the State's conclusion that its SIP already contains 
adequate provisions to meet interstate transport requirements with 
respect to the 2008 ozone NAAQS.
    In proposing to approve the New York SIP submission with respect to 
the prong 4 visibility transport requirements under CAA section 
110(a)(2)(i)(II), EPA explained that New York's SIP submission relied 
on the State's approved Regional Haze SIP to ensure that emissions from 
sources within the State were not interfering with measures to protect 
visibility in other states.

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

    We received comments during the public comment period on our 
proposed action from the New York State Department of Environmental 
Conservation (NYSDEC), the State of Connecticut Department of Energy 
and Environmental Protection (DEEP), and the Environmental Energy 
Alliance of New York, LLC (the Alliance). A synopsis of the comments 
and our responses are below.
    Comment 1: The NYSDEC stated that EPA is proposing to replace New 
York's ``supposedly deficient'' plan with a partial remedy that 
controls fewer units at less stringency. NYSDEC further states that EPA 
is proposing to disapprove a plan based in part on a NOX 
regulation that covers EGUs as well as non-EGU source categories at a 
$5,000 per ton control cost threshold, and replace it with a program 
that covers only EGUs at a $1,300 per ton control cost threshold. 
NYSDEC also states that EPA should explain how its proposed transport 
rule addresses transport more effectively than New York's plan.
    Response 1: As noted above, we identified a number of deficiencies 
with New York's SIP submission to support the proposed disapproval of 
the plan as to prongs 1 and 2 with respect to the 2008 ozone NAAQS. 
While EPA cited the modeling conducted for EPA's proposed Cross State 
Air Pollution Rule Update for the 2008 ozone standard (CSAPR Update), 
80 FR 75706 (December 3, 2015), as additional evidence that emissions 
from New York may significantly contribute to nonattainment or 
interfere with maintenance of the 2008 ozone NAAQS in other states, 
this action did not propose and does not finalize any remedy to address 
the deficiency identified in New York's SIP submission. This action 
does not itself replace New York's plan with the proposed remedy that 
was included in the CSAPR Update proposal or any other remedy. Rather, 
with respect to prongs 1 and 2, this action disapproves New York's 
submission for its failure to provide sufficient analysis to support 
its conclusion that the state's SIP contains adequate provisions 
prohibiting emissions which interfere with air quality in other states.
    NYSDEC misstates the burden imposed upon the EPA in reviewing this 
action. In submitting an infrastructure SIP, the state's burden is to 
demonstrate to EPA's satisfaction that it has complied with the 
statutory requirements of CAA section 110(a)(2). EPA's role in 
reviewing infrastructure SIP submissions is to ensure that the state's 
plan complies with the statute. With respect to prongs 1 and 2, the EPA 
has reviewed New York's demonstration and determined, for the reasons 
summarized above, that it does not adequately demonstrate that the 
state's plan is sufficient to ensure that emissions from the state will 
not significantly contribute to nonattainment or interfere with 
maintenance. As noted below, this disapproval will trigger a federal 
implementation plan (FIP) clock which will require the EPA to 
promulgate a plan to prohibit those levels of emissions that impact 
downwind air quality in violation of the statute. However, the EPA is 
not required to provide that metric at the time it reviews the state's 
demonstration.
    Moreover, EPA's 2011 modeling baseline used for evaluating 
interstate transport with respect to the 2008 ozone NAAQS accounted for 
the emission reductions from controls listed in the SIP--including New 
York's Reasonably Available Control Technology (RACT) rules--and 
nonetheless continued to show that New York would contribute to 
downwind air quality problems. Despite the considerable emission 
reductions achieved by New York, EPA's technical analysis for the CSAPR 
Update proposal demonstrates that New York's emissions still have an 
impact on other states.
    Comment 2: The NYSDEC agreed that emissions in New York contribute 
significantly to nonattainment or interfere with maintenance in 
downwind areas. However, NYSDEC states that EPA should review New 
York's control program relative to what EPA might determine to be an 
approvable remedy rather than basing its disapproval on NYSDEC's 
emission reduction estimates and the fact that New York did not 
quantify its significant contribution.
    Response 2: In this action, EPA is rightly focused on the discrete 
question of whether New York has demonstrated that its SIP contains 
adequate provisions to prohibit significant contribution to 
nonattainment and interference with maintenance of the 2008 ozone NAAQS 
in downwind states. New York acknowledges in its comment, and EPA 
agrees, that New York's SIP submission does not currently satisfy those 
requirements. As such, EPA must disapprove New York's SIP submission 
for failing to satisfy the statutory requirements of CAA section 
110(a)(2)(D)(i)(I). As explained in our June 21, 2016 proposal, and 
summarized above, New York has not demonstrated that its SIP contains 
adequate provisions to address interstate transport as to the 2008 
ozone standard. Furthermore, despite recent emission reductions 
achieved by New York, in EPA's technical analysis for the proposed 
CSAPR Update, our modeling shows that New York contributes well above 
the air quality threshold of 1

[[Page 58851]]

percent of the 2008 ozone NAAQS (0.75 parts per billion) to several 
projected downwind nonattainment or maintenance receptors. As indicated 
in our proposal, EPA's modeling shows that New York contributes 16.96 
ppb to downwind receptors in Connecticut, and 17.21 ppb to downwind 
maintenance receptors in Connecticut and New Jersey, both of which 
greatly exceed the threshold contribution levels.
    Comment 3: The NYSDEC stated that EPA did not provide states with a 
clear indication of what was required for their respective transport 
SIPs at the time they were due. Without this information about cross-
state contributions, NYSDEC relied on control measures already in place 
within the state.
    Response 3: States have an independent responsibility to 
demonstrate that their plans contain adequate provisions to address the 
statutory interstate transport provisions, specifically to demonstrate 
that the plan properly prohibits emissions that will significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in downwind states. As the Supreme Court clearly held in EPA v. EME 
Homer City Generation, L.P., ``nothing in the statute places the EPA 
under an obligation to provide specific metrics to States before they 
undertake to fulfill their good neighbor obligations.'' 134 S. Ct. 
1584, 1601 (2014).\1\ Simply put, the CAA does not require EPA to 
quantify states' good neighbor obligations before acting on their SIP 
submissions. Nevertheless, EPA did provide information to assist states 
with developing or supplementing their SIP submittal for the 2008 ozone 
NAAQS. On January 22, 2015, we issued a memorandum providing 
preliminary modeling information regarding potential downwind air 
quality problems and levels of upwind state contributions. See 
Memorandum from Stephen D. Page to Regional Air Division Directors, 
Regions 1-10, ``Information on the Interstate Transport `Good Neighbor' 
Provision for the 2008 Ozone [NAAQS] under [CAA] Section 
110(a)(2)(D)(i)(I)'', January 22, 2015.'' \2\ As we noted in our CSAPR 
Update proposal, the EPA also provided updated modeling and 
contribution information in its August 4, 2015 NODA. (80 FR 46271). All 
of these documents consistently indicated that the EPA's technical 
analysis showed that New York emissions contribute to downwind air 
quality problems with respect to the 2008 ozone NAAQS, yet New York did 
not revise or supplement its SIP submittal with additional data 
demonstrating that the state had satisfied its statutory obligation.
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    \1\ ``Nothing in the Act differentiates the Good Neighbor 
Provision from the several other matters a State must address in its 
SIP. Rather, the statute speaks without reservation: Once a NAAQS 
has been issued, a State `shall' propose a SIP within three years, 
Sec.  7410(a)(1), and that SIP `shall' include, among other 
components, provisions adequate to satisfy the Good Neighbor 
Provision, Sec.  7410(a)(2).'' EPA v. EME Homer City Generation, 
L.P., 134 S. Ct. at 1601.
    \2\ Available at https://www.epa.gov/sites/production/files/2015-11/documents/goodneighborprovision2008naaqs.pdf.
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    Comment 4: NYSDEC states that EPA's failure to implement a full 
remedy leaves states unsure how to satisfy their transport obligations 
in regard to the 2008 ozone NAAQS. NYSDEC asserts that EPA should 
propose a subsequent update to CSAPR by June 2017 that encompasses a 
full remedy. NYSDEC states that the update should include requirements 
for large non-EGU sources and utilize a control cost threshold that is 
more equitable to states.
    Response 4: For the reasons stated above, this comment is outside 
of the scope of this action. EPA will address comments regarding the 
adequacy of the proposed FIP in the final CSAPR Update rule.
    Comment 5: Connecticut DEEP is supportive of the proposed 
disapproval of New York's SIP submission regarding prongs 1 and 2. DEEP 
notes that New York and Connecticut have partnered for over 40 years to 
provide clean air, especially in the southwest portion of Connecticut 
and the New York City metropolitan region, and will continue this 
collaboration. DEEP encourages EPA to describe, with as much 
specificity as possible, the steps states should take to meet their 
good neighbor responsibilities under the Clean Air Act. DEEP also urges 
EPA to immediately propose and finalize a full transport remedy for the 
2008 ozone NAAQS rather than allowing compliance efforts for the 2015 
NAAQS to drive compliance with the 2008 NAAQS.
    Response 5: EPA is supportive of the states' collaborative efforts 
to improve air quality. This action is focused on EPA's review of New 
York's infrastructure SIP submission addressing prongs 1 and 2 of CAA 
section 110(a)(2)(D)(i) submitted for the 2008 ozone NAAQS. As noted 
earlier, while the EPA is not obligated to quantify state's emission 
reduction obligations prior to or as part of reviewing a state's SIP 
submission, we have provided data informative to the state's 
development and EPA's review of SIPs addressing these requirements with 
respect to the 2008 ozone NAAQS. EPA will further address state's 
emission reduction obligations in the rulemaking to finalize the CSAPR 
Update rule.
    Comment 6: The Alliance requested extension of the public comment 
period for the proposal to coincide with the comment period for a 
proposed consent decree ``requiring the EPA to reject the SIP'' to 
address a lawsuit filed by the Sierra Club in the United States 
District Court for the Northern District of California.\3\
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    \3\ See Sierra Club v. Gina McCarthy, No. 3:15-cv-04328-JD (N.D. 
Cal.).
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    Response 6: We disagree that an extension of the public comment 
period is warranted for this action. The commenter does not provide an 
adequate justification why an extension is necessary. The proposed 
consent decree only concerns a proposed deadline by which EPA would 
have to act on the state's SIP submissions under CAA section 110(k)--
not the substance of that action. See 81 FR 42351 (June 29, 2016). In 
contrast, the June 21, 2016 proposed disapproval sought comment on a 
substantive action--i.e., whether to approve or disapprove New York's 
submission, and on what basis.
    Comment 7: The Alliance asserts that the proposed disapproval of 
New York's transport SIP, the proposed consent decree mentioned in 
comment 6, and the CSAPR Update rule are all related and should be 
resolved at the same time. The Alliance states that they are concerned 
that one of the actions may be settled without consideration of 
comments associated with the other actions, and that the resulting 
plans for attainment may not be as cost effective, ``reduction 
efficient'' or may not significantly impact attainment. By way of 
example, the Alliance notes that it provided comments on the proposed 
CSAPR Update rule regarding errors in EPA's supporting modeling. The 
Alliance contends that without finalizing the CSAPR Update rule, 
neither the EPA nor the commenting public is able to fully evaluate the 
legitimacy of the SIP disapproval. The Alliance further states that in 
as much as the proposed consent decree is intended to effectuate SIP 
disapproval, finalization of the consent decree is unwarranted until 
the full assessment of public input to the CSAPR Update rule is 
completed and finalized.
    Response 7: EPA disagrees that the proposed disapproval of New 
York's transport SIP, the proposed consent decree mentioned in comment 
6, or the CSAPR Update rule should be resolved at the same time. CAA 
section 110(k)(2) requires EPA to act on a state's SIP submission 
within one year after the

[[Page 58852]]

submission is determined to be complete. As indicated in the response 
to comment 6, the proposed consent decree with the Sierra Club governs 
only the timetable on which EPA would be required to act on the state's 
SIP submissions under CAA section 110(k)(2)--not the substance of EPA's 
action.
    As described in the proposal and earlier in this document, EPA has 
identified several ways in which New York's SIP submission was 
deficient for purposes of addressing the state's obligation pursuant to 
CAA section 110(a)(2)(D)(i)(I). In particular, EPA proposed to 
disapprove New York's SIP submission because the State's modeling 
showed ``predicted'' nonattainment in other nearby states with existing 
measures; the submission did not demonstrate that the emission rates at 
which EGUs operated were the result of enforceable emission limits; the 
submission failed to address the State's potential interference with 
maintenance (or prong 2 of section 110(a)(2)(D)(i)); and the submission 
relied on the state's implementation of CAIR, a rule that is no longer 
being implemented by the states and EPA and that was declared invalid 
by the D.C. Circuit.
    While EPA cited the modeling conducted for the proposed CSAPR 
Update rule as additional evidence that New York may significantly 
contribute to nonattainment or interfere with maintenance of the 2008 
ozone NAAQS in downwind states, we did not propose to make a specific 
finding of contribution or to quantify any specific emissions reduction 
obligations. Rather, the evaluation of whether emissions from the State 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS downwind, and if so what reductions are 
necessary to address that contribution, is being conducted in the 
context of the CSAPR Update rulemaking. Accordingly, EPA is considering 
submitted comments regarding EPA's air quality modeling and various 
associated legal and policy decisions in finalizing that rulemaking.
    EPA notes that the technical data discussed at proposal with 
respect to New York's potential contribution to downwind air quality 
problems is consistent with modeling previously conducted for trading 
programs addressing interstate ozone transport such as CSAPR (76 FR 
48208), CAIR (70 FR 25162), and the NOX SIP Call (63 FR 
57356), indicating that New York is frequently linked to downwind 
receptors. The modeling conducted to support the proposed CSAPR Update 
is the most recent technical information available to the Agency which 
still shows such linkages to downwind receptors. Even absent this 
modeling data, New York's SIP submission is inadequate to demonstrate 
compliance with prongs 1 and 2 of CAA section 110(a)(2)(D)(i) with 
respect to the 2008 ozone NAAQS.
    Comment 8: The Alliance commented that, under 110(a)(2)(D)(i)(I), 
SIP control requirements should apply to a source category or a 
reasonable aggregation of emissions. The Alliance further stated that 
under the CSAPR Update rule, EPA unreasonably concluded that the New 
York electric generating unit sector budget--and only that budget--had 
to be revised to address significant nonattainment. The Alliance 
contends that the New York EGU sector emissions are not a significant 
contributor to neighboring state nonattainment or maintenance issues, 
and if EPA finalizes the SIP disapproval and finalizes the CSAPR Update 
rule as proposed, another round of emission reductions from the New 
York EGU sector will not provide any significant improvement in air 
quality. The Alliance concludes that it is not appropriate to consider 
additional reductions from EGUs until reductions are found in other 
sectors.
    Response 8: As described in the proposal and earlier in this 
document, EPA has identified several ways in which New York's SIP fails 
to address the prongs 1 and 2 requirements of CAA section 
110(a)(2)(D)(i)(I). This action did not propose and does not finalize 
any remedy to address the deficiency identified in New York's SIP 
submission. Rather, with respect to prongs 1 and 2, this action 
disapproves New York's submission for its failure to provide sufficient 
analysis to support its conclusion that the state's SIP contains 
adequate provisions to meet interstate transport requirements with 
respect to the 2008 ozone NAAQS. The evaluation of the emission 
reductions necessary to address the State's significant contribution, 
including from which sectors such reductions might be achieved, is 
outside the scope of this rulemaking, and is being conducted in the 
context of the CSAPR Update rulemaking.
    Comment 9: The Alliance cited comments submitted to the docket of 
the CSAPR Update rulemaking that identified alleged technical 
deficiencies in EPA's modeling. The Alliance states that EPA should run 
its modeling using the Integrated Planning Model (IPM) 5.15 base case, 
and correct for other technical errors in CSAPR modeling. The Alliance 
questioned the CSAPR Update rule's conclusion of state linkages to 
downwind nonattainment (and therefore the validity of EPA's proposed 
disapproval), and the expenditure of significant state and EGU 
resources on developing revised SIPs and modifying controls based on an 
outdated modeling platform. The Alliance also states that regulated 
entities are not being given appropriate notice and opportunity to 
comment on the SIP disapproval when EPA has not yet completed modeling 
for the final CSAPR Update rule. The Alliance concludes that the 
correction of errors will demonstrate that the CSAPR Update rule, which 
EPA is relying on to disapprove New York's SIP, results in over-
control.
    Response 9: As noted earlier in this document, EPA will consider 
timely submitted comments regarding EPA's air quality modeling, the 
modeling platform, and state linkages to downwind nonattainment for the 
CSAPR Update in the context of that rulemaking, not this one.
    With respect to this rulemaking, EPA disagrees with the commenter 
that we are only relying on CSAPR modeling to disapprove the State's 
SIP. As we have previously noted, EPA has identified several ways in 
which New York's SIP submission is deficient for purposes of addressing 
the State's obligations under CAA section 110(a)(2)(D)(i)(I). While EPA 
cited the modeling conducted for the CSAPR Update as additional 
evidence that New York may significantly contribute to nonattainment or 
interfere with maintenance of the 2008 ozone NAAQS in downwind states, 
we did not propose to make a specific finding of contribution or to 
quantify any specific emissions reduction obligations. Rather, EPA is 
conducting its evaluation of whether emissions from the State 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS downwind and, if so, what reductions are 
necessary to address that contribution, in the context of the CSAPR 
Update rulemaking.
    EPA therefore disagrees with the commenter that appropriate notice 
and comment to regulated entities on the proposed SIP disapproval has 
not been provided since the CSAPR Update modeling has not been 
finalized. EPA provided a 30 day comment period on the proposed 
disapproval (see 81 FR 40229). EPA has also provided appropriate public 
notice and comment for the CSAPR Update rule (see 80 FR 75706). 
Moreover, there are no regulated entities under this action as this 
action merely disapproves the portion of New York's SIP addressing CAA 
section

[[Page 58853]]

110(a)(2)(D)(i)(I), and does not itself create any new requirements.
    Comment 10: The Alliance commented that EPA should have performed 
refined screening modeling to determine all the factors driving ozone 
exceedances in New York and Connecticut. The Alliance further states 
that failure to do so could unnecessarily require further reductions in 
New York, not resolve the ozone nonattainment problem, and 
unnecessarily lead to the disapproval of New York's SIP.
    Response 10: As discussed above, this action did not propose and 
does not finalize any remedy to address the deficiency identified in 
New York's SIP submission. Rather, with respect to prongs 1 and 2, this 
action disapproves New York's submission for its failure to provide 
sufficient analysis to support its conclusion that the state's SIP 
contains adequate provisions to meet interstate transport requirements 
with respect to the 2008 ozone NAAQS. The degree to which additional 
emission reductions may be necessary to address the requirements of 
section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS will be 
evaluated in a separate rulemaking.
    Comment 11: The Alliance submitted analyses regarding 
NOX emission trends in New York showing declining 
NOX emissions and emission rates, and operational data from 
2007 to 2015 for annual NOX emissions, NOX ozone 
season emissions, NOX peak day emissions, and NOX 
emissions on ozone exceedance days. The Alliance commented that New 
York's ``higher level of assumed reductions'' is more conservative than 
the actual data reveal and that New York's modeling assumptions should 
be honored by EPA. The Alliance indicates that EPA's SIP disapproval is 
based on New York's modeling using higher levels of assumed emission 
reductions, assuming 48% NOX reductions and 30% VOC 
reductions without demonstrating how it will achieve those higher 
levels of emission reductions. The Alliance further indicated that the 
data they submitted shows that between 2007 and 2015, two years before 
the New York modeling year, annual NOX emissions decreased 
64%, ozone season NOX emissions decreased 56%, peak ozone 
season emission day NOX emissions decreased 40%, and the 
average NOX emission reduction on those days when ozone 
exceedances were observed at eight New York ozone monitoring sites 
ranged from 47% to 63% and the NOX emission reduction at the 
Fairfield, Connecticut ozone monitoring site was 38%. The Alliance 
further stated that both the EPA and NYSDEC modeling used annual or 
ozone season emissions for their projections and in both instances the 
observed reductions from 2007 to 2015 are greater than the reductions 
used by NYSDEC. The Alliance concludes that the EPA basis for the SIP 
disapproval is incorrect.
    The Alliance also notes that EPA claimed that New York did not 
demonstrate that the emission rates at which EGUs operated in the state 
are the result of enforceable emission limits or other mandatory 
programs such that the emission rate will not increase. The Alliance 
notes that the NOX emission trends show a marked decrease in 
2014 when New York's revised RACT limits become effective, resulting in 
an annual NOX rate decrease of 52% and an ozone season rate 
decrease of 42%. The Alliance states that the comparison of daily 
NOX emissions from 2007 to 2015 shows that New York's 
revised NOX RACT limits did have an enforceable impact. The 
Alliance also notes that coupled with the number of recent retirements 
at other New York facilities, it is extremely unlikely that 
NOX emission rates could increase substantially.
    Response 11: EPA agrees with the commenter that NOX 
emissions and emission rates in New York have been trending downward 
since 2007. EPA also agrees that due to New York's stringent 2014 RACT 
emission limits--which EPA approved into the SIP and, as such, are 
federally enforceable--there are enforceable limits on NOX 
emissions from EGUs and other large boilers regulated under New York's 
RACT rules. New York's RACT rules also make it unlikely that emission 
rates from those sources will increase above the levels permitted by 
the emissions limits.
    As an initial matter, EPA notes that the Alliance based its 
analysis only on a subset of New York's emissions data (from EPA's 
Clean Air Markets database), whereas New York's modeling was based on a 
much larger emission inventory (projected 328,457 tons of 
NOX emissions, and 368,784 tons of VOC emissions from 
overall state emissions in 2020).
    Most importantly, EPA notes that New York's RACT rules were 
factored into New York's modeling as well as EPA's base case modeling. 
Despite emission reductions from New York's RACT regulations, as noted 
previously in this document, EPA modeling still shows a very large 
contribution to downwind nonattainment and maintenance receptors from 
New York (i.e., over twenty times the threshold contribution). New 
York's modeling also showed nonattainment problems in nearby states. 
Thus, New York has not demonstrated that its RACT rules are sufficient 
to address the state's significant contribution to nonattainment and 
interference with maintenance of the 2008 ozone NAAQS in other states.
    Comment 12: The Alliance submitted analyses showing the correlation 
between New York NOX emissions and observed daily maximum 
ozone concentrations on ozone exceedance days. The Alliance commented, 
``While these analyses confirm that there is a relationship [between 
ozone concentrations in Fairfield, Connecticut and New York EGU 
NOX emissions] they also indicate that EPA and NYSDEC should 
address the trend toward a weaker relationship noted in the difference 
between 2007 and 2015.'' The Alliance further stated, ``[I]t is obvious 
that the relationship between [New York] emissions and downwind ozone 
is complicated, not solely related to [New York] EGU emissions and must 
be evaluated in better detail before the EPA unilaterally rejects the 
New York's [sic] SIP.''
    Response 12: EPA agrees that there is a relationship between New 
York EGU NOX emissions and ozone concentrations in 
Fairfield, Connecticut. This relationship supports EPA's finding that 
reductions in New York EGU NOX emissions are needed to help 
lower ozone concentrations in Fairfield, Connecticut and at other 
downwind nonattainment and maintenance sites in Connecticut to which 
New York is linked. Ozone concentrations in Fairfield, Connecticut are 
dependent upon a number of factors including NOX emissions 
from EGUs and other upwind sources of NOX and VOC emissions, 
as well as local emissions in Connecticut. Inter-annual variability in 
meteorology is a principal factor in determining year-to-year 
differences in the magnitude of ozone concentrations. In this respect, 
the fact that the relationship between New York EGU NOX 
emissions and ozone in Fairfield, Connecticut is different in 2007 
compared to 2015 does not disprove the contributions of New York EGU 
NOX emissions to high ozone concentrations in Fairfield, 
Connecticut.

IV. What action is EPA taking?

    EPA is disapproving a portion of the April 4, 2013 SIP submittal 
from New York 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 interference with 
maintenance of the 2008 ozone NAAQS in other states, known as prongs 1 
and 2 of the good neighbor provision.

[[Page 58854]]

    EPA is approving the portion of the April 4, 2013 SIP submittal 
from New York pertaining to the requirements of CAA section 
110(a)(2)(D)(i)(II) requirement for visibility (or prong 4).
    We expect to take action on the other portions of New York's 
infrastructure SIP at a later date.

V. What are the consequences of a disapproved SIP?

    Pursuant to CAA section 110(c)(1), this disapproval establishes a 
2-year deadline for the EPA to promulgate a FIP for New York addressing 
the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 
2008 ozone NAAQS unless New York submits and we approve a SIP that 
meets these requirements. Disapproval does not start a mandatory 
sanctions clock for New York pursuant to CAA section 179 because this 
action does not pertain to 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).

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act (PRA)

    This final action does not impose an information collection burden 
under the PRA because it does not contain any information collection 
activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
rule does not impose any requirements or create impacts on small 
entities. This partial SIP approval and partial SIP disapproval under 
CAA section 110 will not in-and-of itself create any new requirements 
but simply approves and disapproves certain state requirements for 
inclusion into the SIP.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. This action does not apply on any Indian 
reservation land, any other area where the EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction, or non-reservation areas of 
Indian country. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it merely partially approves and 
partially disapproves a SIP submittal from the State of New York.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations because it does not affect the level of 
protection provided to human health or the environment. This action 
merely partially approves and partially disapproves a SIP submittal 
from the State of New York.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to 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).

L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 25, 2016. 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 CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Incorporation by reference, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

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

    Dated: August 12, 2016.
Judith A. Enck,
Regional Administrator, Region 2.

    40 CFR part 52 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(e), is amended by adding an entry for ``Section 
110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS'' at the 
end of the table to read as follows:


Sec.  52.1670  Identification of plan.

* * * * *
    (e) * * *

[[Page 58855]]



                       EPA-Approved New York Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                      Applicable
       Action/SIP element            geographic or        New York     EPA Approval date        Explanation
                                  nonattainment area   submittal date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)                Statewide...........        04/04/13  08/26/16, [Insert  This action addresses
 Infrastructure Requirements                                            Federal Register   the following CAA
 for the 2008 ozone NAAQS.                                              citation].         element:
                                                                                           110(a)(2)(D(i)(II)
                                                                                           prong 4.
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.1683 is amended by adding paragraph (o) to read as 
follows:


Sec.  52.1683  Control strategy: Ozone.

* * * * *
    (o) The portion of the SIP submitted on April 4, 2013 addressing 
Clean Air Act section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS is 
disapproved.

[FR Doc. 2016-20411 Filed 8-25-16; 8:45 am]
 BILLING CODE 6560-50-P