[Federal Register Volume 84, Number 114 (Thursday, June 13, 2019)]
[Proposed Rules]
[Pages 27559-27566]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12181]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2018-0511; FRL-9994-92-Region 2]
Approval of Air Quality Implementation Plans; New York;
Infrastructure Requirements for the 2008 Ozone, 2010 Sulfur Dioxide,
and 2012 Fine Particulate Matter National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve certain elements of New York's State Implementation Plan (SIP)
revisions, submitted to demonstrate that the State meets the
requirements of the Clean Air Act (CAA) for the 2008 Ozone; 2010 Sulfur
Dioxide; and 2012 particulate matter of 2.5 microns or less
(PM2.5) National Ambient Air Quality Standards (NAAQS).
Section 110(a) of the CAA requires that each state adopt and submit for
approval into the SIP a plan for the implementation, maintenance and
enforcement of each NAAQS promulgated by the EPA.
DATES: Comments must be received on or before July 15, 2019.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2018-0511 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The 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. The 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: Edward J. Linky, Air Programs Branch,
Environmental Protection Agency, 290 Broadway, 25th Floor, New York,
New York 10007-1866, (212) 637-3764, or by email at
[email protected].
SUPPLEMENTARY INFORMATION:
I. What action is EPA proposing?
II. What is the background information?
III. What is a section 110(a)(1) and (2) SIP?
IV. What elements are required under section 110(a)(1) and (2)?
V. What is EPA's approach to the review of infrastructure SIP
submissions?
VI. What did New York submit?
VII. How has the State addressed the elements of the section
110(a)(1) and (2) ``infrastructure'' provisions?
VIII. What action is EPA taking?
IX. Statutory and Executive Order Reviews
I. What action is EPA proposing?
The EPA is proposing to approve certain elements of the State of
New York Infrastructure State Implementation Plan (SIP) as meeting the
section 110(a) infrastructure requirements of the Clean Air Act (CAA)
for the following National Ambient Air Quality Standards (NAAQS or
standard): 2008 Ozone, 2010 sulfur dioxide (SO2), and 2012
particulate matter of 2.5 microns or less (PM2.5). As
explained below, the EPA is proposing to find that the State has the
necessary infrastructure, resources, and general authority to implement
the standards noted above.
II. What is the background information?
Section 110(a)(1) of the CAA requires states to submit for approval
into the SIP a plan that provides for the implementation, maintenance,
and enforcement of new or revised NAAQS
[[Page 27560]]
within three years following the promulgation of such NAAQS. The EPA
commonly refers to such state plans as ``infrastructure SIPs.''
On March 12, 2008, the EPA promulgated a revised NAAQS for
ozone. 73 FR 16436 (March 27, 2008).
On June 2, 2010), the EPA promulgated a revised primary
NAAQS for SO2. 75 FR 35520 (June 22, 2010).
On December 14, 2012, the EPA promulgated a revised
primary NAAQS for PM2.5 for the annual standard. 78 FR 3086
(Jan. 15, 2013).
The New York State Department of Environmental Conservation
(NYSDEC) submitted the following revisions to its Infrastructure State
Implementation Plan (ISIP):
2008 Ozone ISIP submitted on April 4, 2013
2010 SO2 ISIP submitted on October 3, 2013
2012 PM2.5 ISIP submitted on November 30, 2016
On August 26, 2016 (81 FR 58849), the EPA published its action on
certain elements of NYSDEC's April 4, 2013 SIP submittal pertaining to
the 2008 Ozone ISIP. The EPA's action addressed CAA section
110(a)(2)(D)(i)(I) which 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 other state and CAA section 110(a)(2)(D)(i)(II) which
requires SIPs to include provisions prohibiting any source or other
type of emissions activity in one state from interfering with measures
required to protect visibility (prong 4). The EPA disapproved
110(a)(2)(D)(i)(I) (prongs 1 and 2) and approved 110(a)(2)(D)(i)(II)
(prong 4) for the 2008 Ozone NAAQS. 81 FR 58849, 58855 (August 26,
2016).
The EPA approved portions of New York's infrastructure SIP
submittals for the 2008 Ozone and 2010 SO2 NAAQS \1\
pertaining to CAA sections 110(a)(2)(C), (D)(i)(II) (prong 3), and (J),
including PSD interstate transport provisions.\2\ 81 FR 95047 (December
27, 2016).
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\1\ The approval also included the 2008 Lead NAAQS, which is not
a subject of this action.
\2\ CAA 110(a)(2)(C) (requires SIPs to include a program to
provide for enforcement of emission limitations and other control
measures described in CAA 110(a)(2)(A)); CAA 110(a)(2)(D)(i)(II)
(which 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 of air
quality in another state); CAA 110(a)(2)(J) (requirements related to
consultation, public notification and PSD and visibility
protection).
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III. What is a section 110(a)(1) and (2) SIP?
Section 110(a)(1) provides the procedural and timing requirements
for SIPs. Section 110(a)(2) lists specific elements that states must
meet for ``infrastructure'' SIP requirements related to a newly
established or revised NAAQS.
Sections 110(a)(1) and (2) of the CAA require, in part, that states
submit to the EPA plans to implement, maintain and enforce each of the
NAAQS promulgated by the EPA. The EPA interprets this provision to
require states to address basic SIP requirements including emission
inventories, monitoring, and modeling to assure attainment and
maintenance of the standards. By statute, SIPs meeting the requirements
of section 110(a)(1) and (2) are to be submitted by states within three
years after promulgation of a new or revised standard.
IV. What elements are required under section 110(a)(1) and (2)?
The infrastructure requirements of CAA sections 110(a)(1) and (2),
relevant to this action, are discussed in the following EPA guidance
documents: EPA's October 2, 2007, memorandum entitled ``Guidance on SIP
Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour
Ozone and PM2.5 National Ambient Air Quality Standards;''
September 25, 2009, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine
Particle (PM2.5) National Ambient Air Quality Standards;''
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2);'' \3\ and March 17, 2016, ``Information on
Interstate Transport ``Good Neighbor'' provision for the 2012 Fine
Particulate Matter (PM) National Ambient Air Quality Standards under
Clean Air Act (CAA) Section 110(a)(2)(D)(i)(I).''
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\3\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' can
be found at: http://www.epa.gov/airquality/urbanair/sipstatus/infrastructure.html.
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The EPA reviews each infrastructure SIP submission with the
applicable statutory provisions of CAA 110(a)(2). The 14 elements
required to be addressed by CAA section 110(a)(2) are:
110(a)(2)(A): Emission limits and other control measures;
110(a)(2)(B): Ambient air quality monitoring/data system;
110(a)(2)(C): Program for enforcement of control measures
and for construction or modification of stationary sources;
110(a)(2)(D)(i)(I) and (II): Interstate pollution
transport;
110(a)(2)(D)(ii): Interstate and international pollution
abatement;
110(a)(2)(E): Adequate resources and authority, conflict
of interest, oversight of local governments and local authorities;
110(a)(2)(F): Stationary source monitoring and reporting;
110(a)(2)(G): Emergency powers;
110(a)(2)(H): Future SIP revisions;
110(a)(2)(I): Plan revisions for nonattainment areas
(under part D);
110(a)(2)(J): Consultation with government officials,
public notification, and PSD and visibility protection;
110(a)(2)(K): Air quality modeling and data;
110(a)(2)(L): Permitting fees;
110(a)(2)(M): Consultation/participation by affected local
entities.
Two elements identified in section 110(a)(2) are not governed by
the 3-year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not due
within 3 years after promulgation of a new or revised NAAQS, but rather
due at the time that the nonattainment area plan requirements are due
pursuant to section 172 of the CAA. See 77 FR 46354 (August 3, 2012)
and 77 FR 60308 (October 3, 2012, footnote 1). These requirements are:
(1) Submissions required by section 110(a)(2)(C) to the extent that
subsection refers to a permit program as required in part D Title I of
the CAA, and (2) submissions required by section 110(a)(2)(I) which
pertain to the nonattainment planning requirements of part D, Title I
of the CAA. As a result, this action does not address the nonattainment
permit program requirements of section 110(a)(2)(C) for 2012
PM2.5 or the nonattainment planning requirements related to
section 110(a)(2)(I) for the 2008 Ozone, 2010 SO2, or 2012
PM2.5.
This action partially addresses Element D (interstate pollution
transport, interstate and international pollution abatement). As
mentioned in section II, the EPA previously disapproved
110(a)(2)(D)(i)(I) (prongs 1 and 2) and approved 110(a)(2)(D)(i)(II)
(prong 4) for the 2008 Ozone NAAQS. 81 FR 58849 (Aug. 26, 2016). The
EPA approved 110(a)(2)(D)(i)(II) (prong 3) for the 2008 Ozone and 2010
SO2 NAAQS. 81 FR 95047 (December 27, 2016). This action
addresses the remaining element D provisions for 2008 Ozone, 2010
SO2 and 2012 PM2.5 NAAQS, except for
110(a)(2)(D)(i)(I) (prongs 1 and 2)
[[Page 27561]]
provisions for the 2010 SO2 NAAQS and the 2012
PM2.5 NAAQS, which will be addressed in a subsequent action
by the EPA. Therefore, with respect to element D, this action
addresses:
110(a)(2)(D)(i)(II) (prong 3) for the 2012 PM2.5
NAAQS; and
110(a)(2)(D)(i)(II) (prong 4) for the 2010 SO2
NAAQS and 2012 PM2.5 NAAQS
110(a)(2)(D)(ii) for 2008 Ozone NAAQS, 2010 SO2
NAAQS and 2012 PM2.5 NAAQS
V. What is EPA's approach to the review of infrastructure SIP
submissions?
The discussion of the EPA's approach to the review of
infrastructure SIP submissions is detailed in the ``Technical Support
Document for the EPA's proposed Rulemaking for the New York State
Implementation Plan Revision for Meeting the Infrastructure
Requirements in the Clean Air Act'' dated 2019 (TSD). The TSD is
available in the electronic docket (EPA-R02-OAR-2018-0511) at
www.regulations.gov.
Whenever the EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make Infrastructure SIP submissions to
provide for the implementation, maintenance, and enforcement of the
NAAQS. These submissions must meet the various requirements of CAA
section 110(a)(2), as applicable. Due to ambiguity in some of the
language of CAA section 110(a)(2), the EPA believes that it is
appropriate to interpret these provisions in the specific context of
acting on infrastructure SIP submissions. The EPA has previously
provided comprehensive guidance on the application of these provisions
through a guidance document for infrastructure SIP submissions and
through regional actions on infrastructure submissions.\4\ Unless
otherwise noted below, we are following that existing approach in
acting on these submissions. In addition, in the context of acting on
such infrastructure submissions, the EPA evaluates the submitting
state's SIP for facial compliance with statutory and regulatory
requirements, not for the state's implementation of its SIP.\5\ The EPA
has other authority to address issues concerning a state's
implementation of its SIP.
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\4\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013 Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on New York's infrastructure SIP to address the Nitrogen
Dioxide NAAQS, 85 FR 25066, 25067 (May 2, 2014).
\5\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. Thomas, 902 F.3d 971
(Aug. 30, 2018).
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VI. What did New York submit?
NYSDEC submitted the following SIP submittals which address the
infrastructure requirements for the identified NAAQS:
2008 Ozone ISIP submitted on April 4, 2013
2010 SO2 ISIP submitted on October 3, 2013
2012 PM2.5 ISIP submitted on November 30, 2016
New York's section 110 submittals demonstrate how the State, where
applicable, has a plan in place that meets the requirements of section
110 for the 2008 Ozone, 2010 SO2, and 2012 PM2.5
NAAQS. The plans reference the current New York Air Quality SIP, the
New York Codes, Rules and Regulations (NYCRR), the New York
Environmental Conservation Law (ECL) and the New York Public Officer's
Law (POL). The NYCRR, ECL and POL referenced in the submittal are
publicly available. New York's SIP and air pollution control
regulations that have been previously approved by the EPA and
incorporated into the New York SIP can be found at 40 CFR 52.1670 and
are posted on the internet at https://www.epa.gov/sips-ny.
VII. How has the State addressed the elements of the section 110(a)(1)
and (2) ``infrastructure'' provisions?
Infrastructure SIPs for different criteria pollutants can have
common aspects which are consistent for each NAAQS (e.g., authority to
promulgate emission limitations, enforcement, air quality modeling
capabilities, adequate personnel, resources and legal authority). The
EPA compared New York's Infrastructure SIP submittals for the 2008
Ozone, 2010 SO2, and 2012 PM2.5 NAAQS with New
York's Infrastructure SIP submittals for the 1997 8-hour Ozone and the
1997 and 2006 PM2.5 NAAQS, on which the EPA took final
action approving certain elements and sub-elements. 78 FR 37122 (June
20, 2013). Certain elements of the infrastructure SIP submittals are
not pollutant specific. Based upon the EPA's comparison, the EPA is
proposing to determine that the information provided in New York's
Infrastructure SIP submittal for the 2008 Ozone, 2010 SO2
and the 2012 PM2.5 NAAQS for elements E, F, H, K, L, and M
is consistent with or identical to the information provided in New
York's Infrastructure SIP submittal for the 1997 8-hour ozone, 1997 and
2006 PM2.5 NAAQS. The EPA's rationale for approving certain
elements of New York's Infrastructure SIP for 2008 Ozone, 2010
SO2, and 2012 PM2.5 NAAQS is the same as the
rationale for approving those elements of New York's 1997 8-hour ozone
and 1997 and 2006 PM2.5 Infrastructure SIPs, so the EPA is
not repeating this evaluation in today's proposal. Instead, the reader
is referred to the EPA's evaluation of the SIP submittals for the 1997
8-hour ozone and 1997 and 2006 PM2.5 Infrastructure SIPs
detailed in the following documents: (1) Three documents titled
``Technical Support Document for EPA's Proposed Rulemaking for the New
York's State Implementation Plan Revision: State Implementation Plan
Revision For Meeting the Infrastructure Requirements In the Clean Air
Act'' dated December 13, 2007, October 2, 2008 and March 15, 2010; (2)
the EPA's rulemaking proposing approval of certain elements of New
York's Infrastructure SIP submittal for the 1997 8-hour ozone and the
1997 and 2006 PM2.5 NAAQS, 78 FR 25236 (April 30, 2013); (3)
the EPA's final rule approving certain elements of New York's
Infrastructure SIPs for the 1997 8-hour ozone and the 1997 and 2006
PM2.5 NAAQS, 78 FR 37122 (June 20, 2013). These documents
are available in the electronic docket for today's proposed action at
www.regulations.gov. We are, of course, accepting comments on that
rationale as it applies to this proposed approval of New York's
Infrastructure SIP for the 2008 Ozone, 2010 SO2 and 2012
PM2.5 NAAQS.
As discussed in the following sections, the EPA is providing a more
detailed analysis of the remaining elements of New York's 2008 Ozone,
2010 SO2, and 2012 PM2.5 Infrastructure SIP
submittals namely elements A, B, C, D, G, and J.
In summary, the EPA is proposing approval of the following elements
and sub-elements of New York's Infrastructure SIP submittal for 2008
Ozone, 2010 SO2, and 2012 PM2.5 NAAQS (except as
indicated): 110(a)(A) [emission limits and other control measures];
110(a)(2)(B) [ambient air quality monitoring/data system]; 110(a)(2)(C)
[program for enforcement of control measures] for the 2012
PM2.5 NAAQS only; 110(a)(2)(D)(i)(II) [interstate
transport], Prong 3 for 2012 PM2.5 NAAQS, and Prong 4 for
the 2010 SO2 NAAQS and the 2012 PM2.5 NAAQS;
110(a)(2)(D)(ii) [interstate and international pollution abatement];
110(a)(2)(E) [adequate resources, state
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boards/conflict of interest, oversight of local governments and local
authorities]; 110(a)(2)(F) [stationary source monitoring]; 110(a)(2)(G)
[emergency power]; 110(a)(2)(H) [future SIP revisions]; 110(a)(2)(J)
[consultation with government official, public notification, and PSD
for the 2012 PM2.5 NAAQS only]; 110(a)(2)(K) [air quality
and modeling/data]; 110(a)(2)(L) [permitting fees]; and 110(a)(2)(M)
[consultation/participation by affected local entities].
The EPA is not acting on New York's submittal for 2012
PM2.5 as it relates to nonattainment provisions, including
the nonattainment NSR program required by part D, in section
110(a)(2)(C) and is not acting on New York's submittals for 2008 Ozone,
2010 SO2 and 2012 PM2.5 as they relate to the
measures for attainment required by section 110(a)(2)(I) because the
State's Infrastructure SIP submittals do not include nonattainment
requirements and the EPA will act on them when and if necessary. The
EPA is also not acting on the visibility protection portion of element
J for the 2012 PM2.5 submittal.
Element A: Emission Limits and Other Control Measures: Section
110(a)(2)(A) requires SIPs to include enforceable emission limits and
other control measures, measures, means, or techniques, and schedules
for compliance. In each of the submittals, New York identifies
provisions of its federally enforceable SIP that contain enforceable
emission limits and other control measures. The EPA is proposing to
determine that New York has met the requirements of 110(a)(2)(A) of the
CAA with respect to the 2008 Ozone, 2010 SO2 and 2012
PM2.5 NAAQS.
Element B: Ambient air quality monitoring/data system: Section
110(a)(2)(B) requires SIPs to include provisions to provide for
establishment and operation of ambient air quality monitors, to
monitor, compile and analyze ambient air quality data, and to make
these data available to EPA upon request. NYSDEC submittal for the 2012
PM2.5 NAAQS details the State's authority to adopt and
enforce provisions of the SIP. The EPA proposes to find that these
provisions demonstrate that NYSDEC has the requisite authority to
support element B. NYSDEC states that it will continue to operate an
air quality monitoring network that complies with the EPA requirements
and will submit this data to the EPA's Air Quality System (AQS).
NYSDEC's submittals state that they measure air pollutants at more than
50 sites across the State using continuous and/or manual
instrumentation, in accordance with 40 CFR part 53 and 58. These sites
are part of the federally-mandated National Cores Sites (NCORE) and the
State and Local Air Monitoring Stations (SLAMS) network. Near real time
direct reading measurements include gaseous criteria pollutants (ozone,
SO2, NOX and carbon monoxide, PM2.5
and meteorological data). Filter based PM2.5 samples are
collected and shipped to a laboratory for analysis. In January 2017, in
accord with the Data Requirements Rule for the 2010 SO2
standard,\6\ NYSDEC established four monitors near two large sources,
one in St. Lawrence County (Alcoa Massena Aluminum Plant) and the other
in Tompkins County (Cayuga Power Plant) to characterize SO2
air quality in the area.
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\6\ August 21, 2015 (80 FR 50152).
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NYSDEC prepares an Annual Monitoring Network Plan that describes in
detail the specifics of the monitoring network as required by 40 CFR
58.10. The EPA is therefore proposing that New York has met the
requirements of section 110(a)(2)(B) of the CAA with respect to the
2008 Ozone, 2010 SO2 \7\ and 2012 PM2.5 NAAQS.
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\7\ EPA notes that designations for the 2010 SO2
standards were finalized in three rounds on July 25, 2013 (78 FR
47191), August 5, 2013 (78 FR 47191), July 12, 2016 (81 FR 45039),
December 13, 2016 (81 FR 89870), and January 9, 2018 (83 FR 1098).
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Element C: Program for enforcement of control measures and for
construction or modification of stationary sources: Section
110(a)(2)(C) requires states to have a plan that includes a program
providing for enforcement of all SIP measures and the regulation of the
modification and construction of any stationary source, including a
program to meet Prevention of Significant Deterioration (PSD) of Air
Quality and minor source new source review. This element is being
evaluated for the 2012 PM2.5 NAAQS only.
Enforcement of SIP Measures
New York's PM2.5 infrastructure SIP submittal explains
that its SIP is a compilation of rules and regulations that have been
duly promulgated by NYSDEC in accordance with its statutory authority
and consistent with the New York State Administrative Procedures Act.
New York cites Environmental Conservation Law (ECL) section 19-0305,
which authorizes the Commissioner to enforce NYSDEC codes, rules and
regulations established in accordance with ECL Articles 19 and 71. This
includes all control measures that have been adopted into the SIP. New
York states that its authority for enforcement of emission limits and
control measures is provided for in ``Enforcement of Article 19 and Air
Pollution Emergency Rules and Regulations.'' ECL Article 71, Title 21.
New York also identifies the enforcement provisions included in 6 NYCRR
Part 201, specifically 201-1.13 which gives NYSDEC access to regulated
facilities in order to determine compliance.
Regulation of Minor Sources and Minor Modifications
New York states that it permits minor sources of air pollution
through 6 NYCRR Subparts 201-4, ``Minor Facility Registration'' and
201-5, ``State Facility Permits'' and applicable State and Federal
regulations.
PSD Permitting of Major Sources
New York references the State's PSD and Nonattainment New Source
Review (NNSR) permitting program contained in 6 NYCRR Part 231, ``New
Source Review for New and Modified Facilities'' and the State's
permitting program contained in 6 NYCRR 201, ``Permits and
Registrations.'' The EPA approved New York's PSD and NNSR program into
the SIP on November 17, 2010 (75 FR 70140). New York adopted revisions
to Part 231 and 201 to implement PM2.5 provisions that were
not included in the earlier rule and submitted them to the EPA on
October 12, 2011. The EPA approved the SIP revision on December 27,
2016 (81 FR 95047).
The EPA is proposing to approve New York's Infrastructure SIP for
the 2012 PM2.5 NAAQS with respect to the program for
enforcement of control measures requirements of element C. The EPA
proposes to find that the State has adequate authority and regulations
to ensure that SIP-approved control measures are enforced. The EPA is
proposing to find that New York meets the requirement to have a SIP
approved minor new source review program. The EPA also finds that,
based on the approval of New York's PSD program, New York has the
authority to regulate the construction of new or modified stationary
sources to meet the PSD program requirements.
As discussed in Section IV, the EPA is not addressing the
nonattainment permit program requirements of section 110(a)(2)(C) for
2012 PM2.5 NAAQS.
The EPA proposes to determine that New York has met the
requirements of section 110(a)(2)(C) of the CAA with respect to the
2012 PM2.5 NAAQS.
Element D: Interstate transport: Section 110(a)(2)(D) of the CAA 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
[[Page 27563]]
which appear in 110(a)(2)(D)(i)(I) and the second two of which appear
in 110(a)(2)(D)(i)(II). The two prongs in 110(a)(2)(D)(i)(I) prohibit
any source or other type of emissions activity within the State from
emitting any air pollutants in amounts which will contribute
significantly to nonattainment in any other state with respect to any
primary or secondary NAAQS (prong 1), or interfere with maintenance by
any other state with respect to any primary or secondary NAAQS (prong
2). Section 110(a)(2)(D)(i)(I) is not being reviewed in this action.
Section 110(a)(2)(D)(i)(II) prohibits any source or other type of
emissions activity within the State from emitting any air pollutants in
amounts which will interfere with measures required to be included in
the applicable implementation plan for any other state under part C to
prevent significant deterioration of air quality (prong 3) or to
protect visibility (prong 4). Subsection 110(a)(2)(D)(ii) addresses
interstate and international pollution abatement and requires SIPs to
include provisions insuring compliance with sections 115 and 126 of the
CAA, relating to interstate and international pollution abatement.
The EPA acted on portions of 110(a)(2)(D)(i)(I) and (II) with
respect to 2008 Ozone and 2010 SO2 NAAQS. The EPA
disapproved the portion of the 2008 Ozone infrastructure SIP submittal
addressing CAA section 110(a)(2)(D)(i)(I), concerning nonattainment of
the NAAQS (prong 1), and interfering with maintenance of the NAAQS
(prong 2) and approved the portion of the 2008 Ozone infrastructure SIP
submittal addressing CAA section 110(a)(2)(D)(i)(II) concerning
visibility (prong 4).\8\ With respect to the requirements of
110(a)(2)(D)(i)(II) (prong 3), the EPA previously approved \9\ this
portion of New York's SIP submissions for 2008 Ozone and 2010
SO2 NAAQS. New York's SIP submissions that address section
110(a)(2)(D)(i)(I) [prongs 1 and 2] for 2010 SO2 NAAQS, and
2012 PM2.5 NAAQS are currently being reviewed by the EPA,
and the Agency will take action at a later date. Our evaluation of New
York's submittals is limited to assessing whether New York's submittals
meet the requirements of 110(a)(2)(D) under review in this proposal.
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\8\ August 26, 2016 (81 FR 58849).
\9\ December 27, 2016 (81 FR 95047).
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For the 2012 PM2.5 NAAQS, the EPA is proposing that New
York satisfies the 110(a)(2)(D)(i)(II) requirement for prong 3. New
York relies on its PSD program to prevent significant deterioration of
air quality within the state and in other nearby states. New York's SIP
approved 6 NYCRR Part 231 includes both PSD permitting requirements,
which regulate major sources in attainment areas, and Nonattainment New
Source Review requirements, which regulate major sources in
nonattainment areas. New York has affirmed that the program remains in
effect and applies to PM2.5. New York adopted revisions to
Part 231, which included provisions to implement PSD/Nonattainment New
Source Review requirements for PM2.5 and submitted them to
EPA in October 12, 2011. The EPA approved these State revisions to Part
231 in the December 27, 2016 Federal Register issue.
The EPA is proposing that New York satisfies the
110(a)(2)(D)(i)(II) requirement for visibility (prong 4). New York
addresses visibility protection requirements for both the 2010
SO2 and 2012 PM2.5 NAAQS through its EPA-approved
Regional Haze SIP.\10\ The EPA's 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.\11\ The regional haze rule also
requires the state to submit periodic reports describing progress
towards reasonable progress goals established for regional haze and the
adequacy of the state's regional haze SIP. Thus, New York's approved
Regional Haze SIP and approved reasonable progress plan ensure that
emissions from sources within the State are not interfering with
measures to protect visibility in other states.
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\10\ August 28, 2012 (77 FR 51915).
\11\ 40 CFR part 51, subpart P.
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The EPA notes that New York's Regional Haze SIP was supplemented
with a Federal Implementation Plan (FIP) to address two sources,
Danskammer Generating Station, Unit No. 4 (Danskammer) and Roseton
Generating Station, Units 1 and 2 (Roseton), where the Agency
disapproved New York's BART determinations. Following the EPA's action
on New York's Regional Haze Plan, the Title V permits for Danskammer
and Roseton were updated by New York to incorporate the FIP limits
established by the EPA. The Title V permits for Danskammer and Roseton
were submitted to the EPA as SIP revisions on August 20, 2015, and
April 18, 2017, respectively. The EPA published the SIP approval for
Danskammer on December 4, 2017 (82 FR 57126) and the SIP approval for
Roseton on February 16, 2018 (83 FR 6970).
Regarding section 110(a)(2)(D)(ii), which relates to interstate and
international pollution abatement, the EPA is proposing to approve New
York's submissions for infrastructure element 110(a)(2)(D)(ii) for the
2008 Ozone, 2012 PM2.5 and the 2010 SO2 NAAQS.
New York's SIP-approved PSD program is consistent with 40 CFR
51.166(q)(2)(iv) and requires a source to notify air agencies whose
lands may be affected by emissions from that source. (See 78 FR 25236,
25239; 6 NYCRR 231-7.4(f) and 8.5(f)). New York has no pending
obligations under section 115 or 126 of the CAA.
Element E: Adequate Resources: Section 110(a)(2)(E) requires each
state to provide necessary assurances that the state will (i) have
adequate personnel, funding, and authority under state law to carry out
the SIP (and is not prohibited by any provision of federal or state law
from carrying out the SIP or portion thereof), (ii) will comply with
the requirements respecting state boards under CAA section 128, and
(iii) where the state has relied on a local or regional government,
agency, or instrumentality for the implementation of any SIP provision,
the state has responsibility for ensuring adequate implementation of
such SIP provision. This element of the submittals is common to New
York infrastructure submittals that the EPA has previously approved
and, therefore, as discussed in Section VII, the EPA is not repeating
the rationale for approving this element of the submittals. See 78 FR
37122 (June 20, 2013). The EPA proposes to approve the submittals for
the 2012 PM2.5, 2008 Ozone, and 2010 SO2 NAAQS.
Element F: Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires states to establish a system to monitor emissions
from stationary sources and to submit periodic emission reports. This
element of the submittals is common to New York infrastructure
submittals that the EPA has previously approved and, as discussed in
Section VII, EPA, therefore, is not repeating the rationale for
proposing to approve this element of the submittals. New York's
submittal for the 2012 NAAQS PM2.5 NAAQS provides more
detailed information regarding their authority for stationary source
monitoring and reporting in further support of the EPA's proposed
approval of this element.
Element G: Emergency power: Section 110(a)(2)(G) requires states to
provide for emergency authority to address activities causing imminent
and substantial endangerment to public health and requires states to
submit adequate contingency plans to
[[Page 27564]]
implement the emergency episode provisions in their SIPs.
The EPA requires that Infrastructure SIP submittals should meet the
applicable contingency plan requirements of 40 CFR part 51, subpart H
(40 CFR 51.150 through 51.153) (``Prevention of Air Pollution Emergency
Episodes''). Subpart H requires states that have air quality control
regions identified as either Priority I, Priority IA or Priority II to
develop emergency episode contingency plans.
Articles 3 and 19 of the ECL provide New York State with the
authority to address air pollution emergencies. ECL section 3-0301,
entitled ``General functions power and duties of the DEC and the
commissioner,'' authorizes NYSDEC to prevent and control air pollution
emergencies as defined in ECL section 1-0303. ECL articles 3 and 19 are
implemented through 6 NYCRR part 207, ``Control Measures for Air
Pollution Episodes'' which the EPA approved as part of the New York
SIP. See 46 FR 55690 (November 12, 1981).
The EPA also notes that the NYSDEC maintains Air Pollution Episode
Procedures (APEPs) also called Alert Criteria (updated December 2018 at
http://www.dec.ny.gov/chemical/60440.html). In October 2009, NYSDEC
completed a comprehensive revision of the APEPs to address updated
PM2.5 significant harm levels (SHLs) along with revised
values for ozone episodes. This revision involved updating contact
information for the Bureaus of Air Quality Assurance, Stationary
Sources, and Air Quality Surveillance, and the Impact Assessment and
Meteorology Section. Local level emergency contacts were also updated.
NYSDEC's APEPs include air pollution episode criteria for
PM2.5, coarse PM10, ozone, carbon monoxide,
SO2 and nitrogen dioxide, based on SHLs established by the
EPA.
The EPA proposes that New York has met the requirements of section
110(a)(2)(G) for the 2008 Ozone, 2010 SO2 and 2012
PM2.5 NAAQS.
Element H: Future SIP Revisions: Section 110(a)(2)(H) requires
states to have authority to revise their SIPs in response to changes in
the NAAQS or availability of improved methods for attaining the NAAQS
and whenever the EPA finds that the SIP is substantially inadequate.
This element of the submittals is common to New York infrastructure
submittals that the EPA has previously approved and, as discussed in
Section VII, the EPA is not repeating the rationale for proposing to
approve this element of the submittals.
Element I: Plan Revisions for Nonattainment Areas (under part D):
Section 110(a)(2)(I) requires that each plan or plan revision for an
area designated as a nonattainment area meet the applicable
requirements of part D of the CAA. Part D relates to nonattainment
areas. The EPA has determined that CAA 110(a)(2)(D)(I) (Element I) is
not applicable to the infrastructure SIP process. The EPA takes action
on part D nonattainment plans through a separate process.
Element J: Section 110(a)(2)(J): Consultation with Government
Officials, Public Notification, and PSD and Visibility Protection: As
mentioned above, the EPA previously approved portions of New York's
infrastructure SIP submittals for the 2008 Ozone and 2010
SO2 NAAQS \12\ pertaining to CAA sections 110(a)(2)(J). See
81 FR 95047 (December 27, 2016). Therefore, this proposal only pertains
to the EPA's review of element J as it applies to 2012 PM2.5
NAAQS.
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\12\ The approval also included the 2008 Lead NAAQS, which is
not a subject of this action.
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Consultation With Government Officials
The CAA Section 110(a)(2)(J) requires states to meet the applicable
requirements of CAA 121 relating to consultation. CAA Section 121
requires states to provide a satisfactory process of consultation with
general purpose local governments, designated organizations of elected
officials of local governments, Tribal Nations, Federal Land Managers
(FLMs) and Regional Organizations.
NYSDEC has participated in the consultation process of the Regional
Haze SIP (40 CFR 51.308) with the FLMs, states, and Tribal Nations of
the Mid Atlantic/Northeast Visibility Union (MANE/VU) and other
regional planning organizations where emissions from New York State are
reasonably anticipated to contribute to visibility in Class 1 Areas.
NYSDEC's Regional Haze SIP was submitted to the EPA on March 15,
2010. In a Federal Register notice dated August 28, 2012 (77 FR 51915),
the EPA issued a final rule, effective September 27, 2012, partially
approving the New York State Regional Haze SIP and promulgated a
Federal Implementation Plan (FIP) to address two sources (Danskammer
Generation Station Unit No. 4 and Roseton Generation Station).
On December 4, 2017 (82 FR 57126) the EPA approved a source
specific revision to the New York State SIP that established BART
emissions limits for the Danskammer Generation Station Unit No. 4 that
are identical to the emission limits established by the EPA's FIP for
Danskammer Unit No. 4. In conjunction with this SIP approval the EPA
withdrew those portions of the FIP that address BART for Danskammer
Unit No. 4. (82 FR 57126, December 4, 2012).
On February 16, 2018 (83 FR 6970), the EPA approved a source
specific SIP revision for Roseton Generation Station Units 1 and 2.
This SIP revision established BART emissions limits for the Roseton
Generation Station Units 1 and 2 that are identical to those
established by the FIP. The EPA's February 16, 2018 final rule for
Roseton Units 1 and 2 withdrew the FIP that addressed BART for these
two units.
On December 22, 2005, NYSDEC established a SIP Coordinating Council
consisting of senior policy representatives from 19 state agencies and
authorities, and a SIP Task Force consisting of officials from 37 local
governments and designated organizations of elected officials. The SIP
Coordinating Council provides a means to keep state agencies and local
governments informed of planned SIP activities and deadlines, and also
provides a forum for discussion of SIP requirements and implications,
such as effects on transportation planning. The SIP Task Force provides
a means of facilitating local involvement at the MPO and county level.
Periodic meetings of both groups were held during the ozone and
PM2.5 SIP development period for the 1997 NAAQS and continue
as necessary to address nonattainment of the PM2.5 NAAQS and
other revised standards.
The EPA proposes to find that New York has met the requirements of
CAA 110(a)(2)(J) for consultation with government officials.
Public Notification
CAA section 110(a)(2)(J) also requires state plans to meet the
public notification requirements of CAA 127: To notify the public if
NAAQS are exceeded in an area, advise the public of health hazards
associated with exceedances, and enhance public awareness of measures
that can be taken to prevent exceedances and of ways in which the
public can participate in regulatory and other efforts to improve air
quality.
All ambient air concentrations captured by the State's
PM2.5 monitoring network are submitted to the Air Quality
System for public access. Municipalities have emergency response plans
recommended by the New York State Office of Emergency Management and
the Federal Emergency Management Agency that provide for public
information and notification in the case of large-scale emergencies.
[[Page 27565]]
The NYSDEC's website at http://www.dec.ny.gov/chemical/34985.html
contains an Air Quality Index (AQI) for reporting daily air quality to
the public. It describes how clean or polluted the air is and what
associated health effects might be a concern. When levels of ozone and/
or fine particles exceed an AQI of 100, an Air Quality Health Advisory
is issued alerting sensitive groups to take necessary precautions. The
NYSDEC in cooperation with the New York State Department of Health
posts warnings on the above referenced website and issues press
releases to local media outlets if dangerous conditions are expected to
occur. The Air Quality Index displays the predicted AQI value for eight
regions in New York State. It also displays the observed values for the
previous day. Air Quality measurements from New York's continuous
monitoring network are updated hourly where available. Parameters
monitored include ozone, fine particulate, carbon monoxide, sulfur
dioxide, nitrogen oxides, methane/hydrocarbons and meteorological data.
Emissions of PM2.5 come from mobile sources, stationary
sources, aviation sources, wildfires and fires prescribed and open
burning and woodstoves. Control measure includes public education on
proper burning and consumer recycling and disposal of waste in
landfills. Programs to replace outdated stoves, low sulfur fuel, diesel
engine retrofits and idling of mobile sources are also included as part
of the public awareness program.
The public is afforded the opportunity to participate in the
regulatory process by submitting written comments on each major SIP
revision and petitioning for a public hearing on such revisions.
The EPA proposes to find that New York has met the requirements of
CAA 110(a)(2)(J) for public notification.
Prevention of Significant Deterioration
New York has a SIP approved PSD/NSR program that covers all
criteria pollutants including PM2.5. 6 NYCRR Part 231 ``New
Source Review for New and Modified Facilities'' was approved by the EPA
on November 17, 2010 (75 FR 70142). 6 NYCRR Part 231 regulates major
sources under NSR (when the source is located in a nonattainment area)
and PSD (when the source is located in an attainment area). NYSDEC
adopted a revision to 6 NYCRR Part 231 to implement PM2.5
provisions in 2011. These revisions were submitted to the EPA for
inclusion in the SIP on October 12, 2011. The EPA approved the State's
revision to Part 231 in a December 27, 2016 action (81 FR 95047).
The EPA proposes to approve New York's infrastructure SIP with
respect to the requirements of the PSD sub-element of CAA 110(a)(2)(J).
Visibility Protection
Visibility Protection and regional haze program requirements under
Section 169A and B of Part C are being met by NYSDEC through separate
efforts. In the event of the establishment of a new NAAQS, the
visibility and regional haze program requirements under Part C do not
change. As noted in the EPA's 2013 guidance, we find that there is not
new visibility obligation triggered under Section 110(a)(2)(J) when a
new NAAQS becomes effective. There are thus no new applicable
visibility protection obligations under Section 110(a)(2)(J) resulting
from 2012 PM2.5 NAAQS revision and the EPA, therefore, is
not acting on the visibility aspect of Element J.
Element K: Air Quality Modeling/Data: Section 110(a)(2)(K) requires
that SIPs provide for air quality modeling for predicting effects on
air quality of emissions from any NAAQS pollutant and submission of
such data to EPA upon request. This element of the submittals is common
to New York infrastructure submittals that the EPA has previously
approved and, as discussed in Section VII, the EPA is not repeating the
rationale for proposing to approve this element of the submittals.\13\
The reader is referred to the EPA's analysis evaluation of the SIP
submittals identified in Section VII.
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\13\ Due to State revisions to 6 NYCRR 201-6, section 201-
6.5(a)(7) in the EPA-approved NY Title V program is now numbered in
the State's regulation as 6 NYCRR 201-6.4(a)(7).
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Element L: Permitting Fees: Section 110(a)(2)(L) requires SIPs to
mandate that each major stationary source pay permitting fees to cover
the cost of reviewing, approving, implementing and enforcing a permit,
until such time as the SIP fee requirement is superseded by the EPA's
approval of the state's operating permit program. This element of the
submittals is common to New York infrastructure submittals that the EPA
has previously approved and, as discussed in Section VII, the EPA is
not repeating the rationale for proposing to approve this element of
the submittals.
Element M: Consultation/Participation by Affected Local Entities:
Section 110(a)(2)(M) requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP. This element of the submittals is common to New
York infrastructure submittals that the EPA has previously approved and
therefore the EPA is not repeating the rationale for proposing to
approve this element of the submittals. The EPA notes that the
submittals provide more detailed information regarding NYSDEC's
authority to provide for consultation and participation in SIP
development, in further support of the EPA's proposed approval of this
element. The submittals identify the SIP Task Force, consisting of
officials from 37 local governments and designated organizations of
elected officials, as allowing for consultation by local political
subdivisions affected by the SIP and the submittals for the 2010
SO2 NAAQS and 2008 Ozone NAAQS also cite the Inter-agency
Consultation Group, established pursuant to 6 NYCRR Part 240, and the
State Environmental Quality Review process, 6 NYCRR Part 617.
VIII. What action is the EPA taking?
The EPA is proposing to approve New York's submittals as meeting
the infrastructure requirements for the 2008 Ozone, 2010 SO2
and 2012 PM2.5 NAAQS for all section 110(a)(2) elements and
sub-elements, as follows: (A), (B), (C) [enforcement measures and PSD
program for major sources for 2012 PM2.5 only], (D)(i)(II)
prong 3 [for 2012 PM2.5 only], (D)(i)(II) prong 4 [for 2010
SO2 and 2012 PM2.5 only], D(ii), (E), (F), (G),
(H), (J) [for consultation, public notification and prevention of
significant deterioration 2012 PM2.5 only], (K), (L) and
(M).
The EPA is not acting on New York's submittal for 2012
PM2.5 as it relates to nonattainment provisions, the NSR
program required by part D, in section 110(a)(2)(C) and is not acting
on New York's submittals for 2008 Ozone, 2010 SO2 and 2012
PM2.5 NAAQS as they relate to the measures for attainment
required by section 110(a)(2)(I), as part of this proposed approval
because the State's infrastructure SIP submittals do not include
nonattainment requirements and the EPA will act on them when, if
necessary, they are submitted.
The EPA is also not acting on 110(a)(2)(D)(i)(I) provisions (prongs
1 and 2) for the 2010 SO2 NAAQS and the 2012
PM2.5 NAAQS, which will be addressed in a subsequent action
by the EPA.
The EPA is soliciting public comments on the issues discussed in
this proposal. These comments will be considered before the EPA takes
final action. Interested parties may participate in the Federal
rulemaking procedure by submitting written comments to the EPA Regional
Office listed in the ADDRESSES section of this Federal Register, or by
submitting
[[Page 27566]]
comments electronically, by mail, or through hand delivery or courier
following the directions in the ADDRESSES section of this Federal
Register.
IX. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the CAA and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
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).
This proposed rulemaking pertaining to New York's section 110(a)(2)
infrastructure requirements for the 2008 Ozone NAAQS, 2012
PM2.5 NAAQS, and 2010 SO2 NAAQS 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 it will not impose
substantial direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Particulate matter,
Reporting and recordkeeping requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 28, 2019.
Peter D. Lopez,
Regional Administrator, Region 2.
[FR Doc. 2019-12181 Filed 6-12-19; 8:45 am]
BILLING CODE 6560-50-P