[Federal Register Volume 84, Number 197 (Thursday, October 10, 2019)]
[Rules and Regulations]
[Pages 54502-54507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21955]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2018-0511; FRL-10000-78-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving certain 
elements of New York's State Implementation Plan (SIP) revisions, 
submitted to demonstrate that the State meets the requirements of 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: This final rule is effective on November 12, 2019.

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 taking?
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 comments did EPA receive in response to the proposed 
action?
IX. What is EPA approving?
X. Statutory and Executive Order Reviews

I. What action is EPA taking?

    The EPA is approving 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 has determined 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 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

[[Page 54503]]

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)'' (``2013 Guidance''); \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) 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;
     110(a)(2)(D)(i)(II) (prong 4) for the 2010 SO2 
NAAQS and 2012 PM2.5 NAAQS; and
     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. For additional information, the reader is also 
referred to EPA's Proposed Rule. 84 FR 27559 (June 13, 2019).
    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

[[Page 54504]]

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 
explicit Clean Air Act 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?

    The EPA has determined that New York has the necessary 
infrastructure, resources, and general authority to address certain 
elements of the section 110(a)(1) and (2) infrastructure provisions for 
the 2008 Ozone, 2010 SO2, and 2012 PM2.5 NAAQS. 
In summary, the EPA is approving 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 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 nonattainment required by part D in section 110(a)(2)(I), 
because the State's Infrastructure SIP submittals do not include 
nonattainment requirements related to these 2 elements. The EPA is also 
not acting on the visibility protection portion of element J for the 
2012 PM2.5 submittal.

VIII. What comments did EPA receive in response to the proposed action?

    On June 13, 2019 (84 FR 27559), EPA proposed to approve certain 
elements of New York's ISIP revisions, submitted to demonstrate that 
the State meets the requirements of the CAA for the 2008 Ozone; 2010 
SO2 and 2012 PM2.5 NAAQS. EPA received an 
erroneously filed comment from one commenter and an adverse comment 
from an anonymous commenter, in response to the June 13, 2019 proposed 
action.
    Comment: A comment was submitted on EPA's proposed rule to deny New 
York's 126 petition submitted by Louisville Gas and Electric and 
Kentucky Utilities Companies.
    EPA Response: These comments were submitted to the Docket for this 
action but are not applicable to this action and are filed in error. 
The comments will be addressed separately in the EPA's Response to 
Comments on the Proposed Action on Section 126(b) Petition from New 
York (Docket ID No. EPA-HQ-OAR-2018-0170).
    Comment: EPA must provide a complete record that New York has 
adequate resources and personnel to implement the SIP. EPA must audit 
NYSDEC to ensure proper funding and personnel to implement the SIP.
    EPA response: EPA disagrees with this comment. An audit of NYSDEC 
is not required. CAA Section 110(a)(2)(E)(i) (Element E) requires that 
the State provide ``necessary assurances'' that it will have adequate 
funding and personnel to implement the relevant NAAQS. As stated in the 
proposal, in the context of acting on infrastructure submissions, EPA 
evaluates the submitting state's SIP for facial compliance with 
statutory and regulatory requirements, not for the state's 
implementation of its SIP.\6\ The EPA has other authority to address 
any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \6\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, 902 F.3d 971 
(August 30, 2018. Also see proposed rulemaking in this action 84 FR 
27559, 27561 (June 13, 2019).
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    The requirements of Element E, that the State have adequate 
resources and personnel, are clearly demonstrated in New York's three 
ISIP submittals dated April 4, 2013 (for the 2008 ozone ISIP), October 
3, 2013 (for the 2010 SO2 ISIP), and November 30, 2016 (for 
the 2012 PM2.5 ISIP), as detailed by the EPA in its 
technical support document (TSD) at pages 11-12, included in this 
docket. The submittals indicated that NYSDEC's Division of Air 
Resources (DAR) has over 200 full-time positions and receives both 
operating and capital funding. As New York's submittals indicates, 
operating funds are allocated to DAR annually and are used for daily 
administrative expenses. These expenses include salaries, fringe 
benefit, and indirect and non-personnel services such as travel, supply 
and equipment costs. Indirect costs are, in turn, allocated to other 
Departments or

[[Page 54505]]

divisions that support DAR activities. DAR is allocated operating funds 
from five sources: General Fund, Utility Environmental Regulatory 
Account, Co-operative Agreements (i.e., EPA section 103 and 105 grants) 
and the Clean Air Fund, which is comprised of the Title V and Mobile 
Source accounts.
    Capital funds are allocated to the DAR at the discretion of the New 
York State legislature and are used for the financing or acquisition of 
capital facilities such as the construction of an air monitoring site. 
DAR is allocated Capital funds from three sources: General Fund, Mobile 
Source Account and Rehabilitation and Improvement.'' \7\
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    \7\ See submission of NY SIP for interstate transport of 
PM2.5.
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    Therefore, the EPA has determined that the NYSDEC has provided 
necessary assurances that it has sufficient funding and personnel to 
meet the requirements of section 110(a)(2)(E)(i) for the 2008 ozone, 
2010 SO2 and 2012 PM2.5 NAAQS.
    Comment: New York does not have adequate resources to implement a 
Regional Haze Program and EPA must impose a FIP on New York for two 
sources which commenter does not identify.
    EPA Response: EPA disagrees that New York lacks adequate resources 
to implement a Regional Haze Program. As noted above, Element E, 
specifically CAA Section 100(a)(2)(E)(i), does not require an audit of 
resources and personnel. New York's Regional Haze plan was approved 
into the SIP for 18 facilities. 77 FR 51915 (Aug. 28, 2012). Only two 
facilities, Danskammer Generating Station and Roseton Generating 
Station, were subject to the Federal Implementation Plan (FIP). 
Specifically, New York's SO2, NOX and PM Best 
Available Retrofit Technology (BART) determinations and emissions 
limits for Danskammer Generating Station, Unit 4, and New York's 
SO2 BART determinations and emissions limit for Roseton 
Generating Station, Units 1 and 2, were subject to the FIP. EPA's FIP 
determination did not cite resources or personnel as a basis for the 
FIP, rather, the State had provided a regional haze SIP with supporting 
analysis, but EPA disagreed with the specific BART determinations with 
regard to specific pollutants at specific units at these facilities 
that the State had submitted. 77 FR 51915 (Aug. 28, 2012). Moreover, 
for each of the sources, the EPA subsequently approved a source-
specific SIP revision and withdrew the FIP. 82 FR 57126 (Dec. 4, 2017) 
(approving the SIP for Danskammer Generating Station, Unit 4) and 83 FR 
6970 (Feb. 16, 2018) (approving the SIP for Roseton Generating Station, 
Units 1 and 2).
    Comment: Elements, F, H, K, L and M: EPA does not provide any 
rationale for approving these elements other than to refer the reader 
to previous actions. EPA must review each submission on its own merits.
    EPA Response: EPA reviewed and evaluated each submittal addressed 
in this action. As explained in the proposal (84 FR 27559) and the 
accompanying TSD for this rulemaking, and consistent with EPA's ISIP 
guidance, certain elements of the Infrastructure SIP submittals are not 
pollutant specific. EPA proposed to find that, for certain elements, 
including Elements F, H, K, L and M, the information provided in these 
submittals is consistent with or identical to prior submittals that 
addressed these specific elements. As explained in the proposal, EPA's 
prior actions on ISIPs included a full evaluation of the information 
provided by the State for each element, found the New York SIP 
submittal was sufficient, and approved it. New York, in each of its 
submittals in this action, has affirmed that the existing SIP meets the 
requirements of CAA sections 110(a)(1) and (2). The EPA is not aware 
of, and the commenter has not identified, anything about the 2008 
ozone, 2010 SO2, or 2012 PM2.5 NAAQS that would 
cause New York's SIP for these elements to be insufficient. In 
addition, New York's submissions for the 2008 ozone, 2010 
SO2, or 2012 PM2.5 NAAQS identify the basis for 
approving Elements F, H, K, L and M, and that is detailed in the TSD 
for this action at pages 12-14 for Element F, page 15-16 for Element H, 
page 20-21 for Element K, page 21 for Element L and pages 21-22 for 
Element M. Accordingly, approval of the pending submittal for these 
elements is appropriate.
    Comment: For Element H, the EPA must disapprove this element until 
the EPA establishes a SHL for the PM2.5 NAAQS. In 
establishing the PM2.5 NAAQS under the 1997 standard the EPA 
stated that no SHL was able to be established so a placeholder value 
was being imposed at 500.
    EPA Response: Element H concerns future SIP revisions and does not 
relate to establishment of a significant harm level (SHL). The issue of 
establishment of an SHL relates to Element G (Emergency Powers). In 
promulgating the 2012 PM2.5 NAAQS, EPA retained the pre-
existing level of 500 micrograms per cubic meter (ug/m\3\), 24-hour 
average, for the Air Quality Index (AQI) value of 500 and did not 
establish a significant harm (SHL) for PM2.5. In the absence 
of a SHL, EPA maintains that the central components of a contingency 
plan would be to reduce emissions for the PM2.5 sources at 
issue and to provide public communication as needed. See 2013 Guidance 
at pages 47-49. NYSDEC's November 2016 ISIP submittal addressing the 
Element G requirements for the 2012 PM2.5 NAAQS meets the 
requirements of the EPA's 2013 guidance and, as explained in detail in 
the EPA's TSD for this ISIP submittal, is acceptable to the EPA.
    Comment: The comment asserts that the EPA must review Element L 
with respect to permitting fees and reveal any defects at this time. 
The EPA cannot point to a previous approval of a similar or nearly 
similar submittal. EPA must audit the state's title V fee collection 
system to affirmatively prove that adequate fees are being collected in 
order to implement the title V program. The EPA cannot rely on a state 
claim without affirmatively confirming it.
    EPA response: CAA 110(a)(2)(L) sets forth specific requirements 
that are in effect ``until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under subchapter V [title V].'' The Administrator previously 
approved New York's title V operating program. EPA granted interim 
approval to the Title V operating permit program submitted by the State 
of New York effective December 9, 1996. 61 FR 57589 (November 7, 1996). 
The final interim approval at 61 FR 57590, determines that ``the State 
has the authority to collect sufficient fees to implement its title V 
program'' and, at 61 FR 57592, allows the State to ``issue operating 
permits pursuant to Title V of the Act to all major stationary 
sources.'' See also 61 FR 63928 (Dec. 2, 1996) (correction); 40 CFR 
part 70, Appendix A. EPA subsequently granted full approval to New 
York's program, effective November 30, 2001. 66 FR 63180 (December 5, 
2011). In so doing, the Administrator found that the fee program was 
sufficient to cover all CAA permitting, implementation, and enforcement 
for new and modified major sources as well as existing major sources, 
which is consistent with the requirements of CAA 110(a)(2)(L). 
Statutory and regulatory citations related to the fee aspects of New 
York's title V operating program are found in the TSD at p. 21. 
Accordingly, and consistent with EPA's ISIP guidance, reliance on the 
existing, EPA-approved title V fee program is sufficient to approve 
this element and an additional examination of that approved program is 
not necessary.

[[Page 54506]]

IX. What is EPA approving?

    The EPA is approving 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.

X. 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 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. Subpart HH New York.

    Dated: September 23, 2019.
 Peter D. Lopez,
 Regional Administrator, Region 2.

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

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart HH--New York

0
2. In Sec.  52.1670, the table in paragraph (e) is amended by adding 
entries for ``Section 110(a)(2) Infrastructure Requirements for the 
2008 Ozone NAAQS'', ``Section 110(a)(2) Infrastructure Requirements for 
the 2010 SO2 NAAQS'', and ``Section 110(a)(2) Infrastructure 
Requirements for the 2012 PM2.5 NAAQS'' at the end of the 
table to read as follows.


Sec.  52.1670  Identification of plan.

* * * * *
    (e) * * *

                      EPA-Approved New York Non-Regulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                  Applicable
                                 geographic or      New York       EPA approval
      Action/SIP element         nonattainment   submittal date        date                 Explanation
                                     area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)              Statewide.......        4/4/2013  10/10/2019,      This action addresses the
 Infrastructure Requirements                                      [insert          following CAA elements:
 for the 2008 Ozone NAAQS.                                        Federal          110(a)(2)(A), (B), (D)(ii),
                                                                  Register         (E), (F), (G), (H), (K), (L)
                                                                  citation].       and (M).
Section 110(a)(2)              Statewide.......       10/3/2013  10/10/2019,      This action addresses the
 Infrastructure Requirements                                      [insert          following CAA elements:
 for the 2010 SO2 NAAQS.                                          Federal          110(a)(2)(A), (B), (D)(i)(II)
                                                                  Register         prong 4, (D)(ii), (E), (F),
                                                                  citation].       (G), (H), (K), (L) and (M).

[[Page 54507]]

 
Section 110(a)(2)              Statewide.......      11/30/2016  10/10/2019,      This action addresses the
 Infrastructure Requirements                                      [insert          following CAA elements:
 for the 2012 PM2.5 NAAQS.                                        Federal          110(a)(2)(A), (B), (C)
                                                                  Register         [enforcement measures and PSD
                                                                  citation].       program for major sources],
                                                                                   (D)(i)(II) prong 3, (D)(ii),
                                                                                   (E), (F), (G), (H), (J) [for
                                                                                   consultation, public
                                                                                   notification and prevention
                                                                                   of significant deterioration]
                                                                                   (K), (L) and (M).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2019-21955 Filed 10-9-19; 8:45 am]
 BILLING CODE 6560-50-P