[Federal Register Volume 89, Number 57 (Friday, March 22, 2024)]
[Proposed Rules]
[Pages 20384-20410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06105]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2020-0455; FRL-11807-01-R2]


Approval and Promulgation of Air Quality Implementation Plans; 
New York; Regional Haze State Implementation Plan for the Second 
Implementation Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the regional haze state implementation plan (SIP) submitted by 
the State of New York through the Department of Environmental 
Conservation (NYSDEC or New York) on May 12, 2020, as satisfying 
applicable requirements under the Clean Air Act (CAA) and the EPA's 
Regional Haze Rule for the program's second implementation period. New 
York's SIP submission addresses the requirement that states must 
periodically revise their long-term strategies for making reasonable 
progress towards the national goal of preventing any future, and 
remedying any existing, anthropogenic impairment of visibility in 
mandatory Class I Federal areas, including regional haze. The SIP 
submission also addresses other applicable requirements for the second 
implementation period of the regional haze program. The EPA is taking 
this action pursuant to sections 110 and 169A of the Clean Air Act.

DATES: Written comments must be received on or before April 22, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2020-0455 at https://www.regulations.gov. Although listed in the 
index, some information is not publicly available, e.g., Controlled 
Unclassified Information (CUI) (formally referred to as Confidential 
Business Information (CBI)) or other information whose disclosure is 
restricted by statute. Certain other material, such as

[[Page 20385]]

copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://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 
CUI 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 CUI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Robert Rutherford, U.S. Environmental 
Protection Agency, Air Programs Branch, Region II, 290 Broadway, New 
York, New York 10007-1866, at (212) 637-3712 or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. What action is the EPA proposing?
II. Background and Requirements for Regional Haze Plans
    A. Regional Haze Background
    B. Roles of Agencies in Addressing Regional Haze
III. Requirements for Regional Haze Plans for the Second 
Implementation Period
    A. Identification of Class I Areas
    B. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress
    C. Long-Term Strategy for Regional Haze
    D. Reasonable Progress Goals
    E. Monitoring Strategy and Other Implementation Plan 
Requirements
    F. Requirements for Periodic Reports Describing Progress Towards 
the Reasonable Progress Goals
    G. Requirements for State and Federal Land Manager Coordination
IV. The EPA's Evaluation of New York's Regional Haze Submission for 
the Second Implementation Period
    A. Background on New York's First Implementation Period SIP 
Submission
    B. New York's Second Implementation Period SIP Submission and 
the EPA's Evaluation
    C. Identification of Class I Areas
    D. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress
    E. Long-Term Strategy for Regional Haze
    a. New York's Response to the Six MANE-VU Asks
    b. The EPA's Evaluation of New York's Response to the Six MANE-
VU Asks and Compliance With 40 CFR 51.308(f)(2)(i)
    c. Additional Long-Term Strategy Requirements
    F. Reasonable Progress Goals
    G. Monitoring Strategy and Other Implementation Plan 
Requirements
    H. Requirements for Periodic Reports Describing Progress Towards 
the Reasonable Progress Goals
    I. Requirements for State and Federal Land Manager Coordination
V. Environmental Justice Considerations
VI. The EPA's Proposed Action
VII. Statutory and Executive Order Reviews

I. What action is the EPA proposing?

    On May 12, 2020, NYSDEC submitted a revision to its SIP to address 
regional haze for the second implementation period (``NY RH 2nd 
Implementation Period SIP submission''). NYSDEC supplemented its SIP 
submission on February 16, 2022. NYSDEC made this SIP submission to 
satisfy the requirements of the CAA's regional haze program pursuant to 
CAA sections 169A and 169B and 40 CFR 51.308. The EPA is proposing to 
find that the NY RH 2nd Implementation Period SIP submission meets the 
applicable statutory and regulatory requirements and thus proposes to 
approve New York's SIP revision submission.

II. Background and Requirements for Regional Haze Plans

A. Regional Haze Background

    In the 1977 CAA Amendments, Congress created a program for 
protecting visibility in the nation's mandatory Class I Federal areas, 
which include certain national parks and wilderness areas.\1\ CAA 169A. 
The CAA establishes as a national goal the ``prevention of any future, 
and the remedying of any existing, impairment of visibility in 
mandatory class I Federal areas which impairment results from manmade 
air pollution.'' CAA 169A(a)(1). The CAA further directs the EPA to 
promulgate regulations to assure reasonable progress toward meeting 
this national goal. CAA 169A(a)(4). On December 2, 1980, the EPA 
promulgated regulations to address visibility impairment in mandatory 
Class I Federal areas (hereinafter referred to as ``Class I areas'') 
that is ``reasonably attributable'' to a single source or small group 
of sources. (45 FR 80084, December 2, 1980). These regulations, 
codified at 40 CFR 51.300 through 51.307, represented the first phase 
of the EPA's efforts to address visibility impairment. In 1990, 
Congress added section 169B to the CAA to further address visibility 
impairment; specifically, impairment from regional haze. CAA 169B. The 
EPA promulgated the Regional Haze Rule (RHR), codified at 40 CFR 
51.308,\2\ on July 1, 1999. (64 FR 35714, July 1, 1999). These regional 
haze regulations are a central component of the EPA's comprehensive 
visibility protection program for Class I areas.
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    \1\ Areas statutorily designated as mandatory Class I Federal 
areas consist of national parks exceeding 6,000 acres, wilderness 
areas and national memorial parks exceeding 5,000 acres, and all 
international parks that were in existence on August 7, 1977. CAA 
162(a). There are 156 mandatory Class I areas. The list of areas to 
which the requirements of the visibility protection program apply is 
in 40 CFR part 81, subpart D.
    \2\ In addition to the generally applicable regional haze 
provisions at 40 CFR 51.308, the EPA also promulgated regulations 
specific to addressing regional haze visibility impairment in Class 
I areas on the Colorado Plateau at 40 CFR 51.309. The latter 
regulations are applicable only for specific jurisdictions' regional 
haze plans submitted no later than December 17, 2007, and thus are 
not relevant here.
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    Regional haze is visibility impairment that is produced by a 
multitude of anthropogenic sources and activities which are located 
across a broad geographic area and that emit pollutants that impair 
visibility. Visibility impairing pollutants include: fine and coarse 
particulate matter (PM) (e.g., sulfates, nitrates, organic carbon, 
elemental carbon, and soil dust), and their precursors (e.g., sulfur 
dioxide (SO2); nitrogen oxides (NOX); and, in 
some cases, volatile organic compounds (VOC) and ammonia 
(NH3)). Fine particle precursors react in the atmosphere to 
form fine particulate matter (PM2.5), which impairs 
visibility by scattering and absorbing light. Visibility impairment 
reduces the perception of clarity and color, as well as visible 
distance.\3\
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    \3\ There are several ways to measure the amount of visibility 
impairment, i.e., haze. One such measurement is the deciview, which 
is the principal metric used by the RHR. Under many circumstances, a 
change in one deciview will be perceived by the human eye to be the 
same on both clear and hazy days. The deciview is unitless. It is 
proportional to the logarithm of the atmospheric extinction of 
light, which is the perceived dimming of light due to its being 
scattered and absorbed as it passes through the atmosphere. 
Atmospheric light extinction (b\ext\) is a metric used to for 
expressing visibility and is measured in inverse megameters (Mm-1). 
The EPA's Guidance on Regional Haze State Implementation 
Plans for the Second Implementation Period (``2019 Guidance'') 
offers the flexibility for the use of light extinction in certain 
cases. Light extinction can be simpler to use in calculations than 
deciviews, since it is not a logarithmic function. See, e.g., 2019 
Guidance at 16, 19, https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and Standards, 
Research Triangle Park (August 20, 2019). The formula for the 
deciview is 10 ln (b\ext\)/10 Mm-1). 40 CFR 51.301.

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[[Page 20386]]

    To address regional haze visibility impairment, the 1999 RHR 
established an iterative planning process that requires both states in 
which Class I areas are located and states ``the emissions from which 
may reasonably be anticipated to cause or contribute to any impairment 
of visibility'' in a Class I area to periodically submit SIP revisions 
to address such impairment. CAA 169A(b)(2); \4\ see also 40 CFR 
51.308(b), (f) (establishing submission dates for iterative regional 
haze SIP revisions); (64 FR 35768, July 1, 1999). Under the CAA, each 
SIP submission must contain ``a long-term (ten to fifteen years) 
strategy for making reasonable progress toward meeting the national 
goal,'' CAA 169A(b)(2)(B); the initial round of SIP submissions also 
had to address the statutory requirement that certain older, larger 
sources of visibility impairing pollutants install and operate the best 
available retrofit technology (BART). CAA 169A(b)(2)(A); 40 CFR 
51.308(d), (e). States' first regional haze SIPs were due by December 
17, 2007, 40 CFR 51.308(b), with subsequent SIP submissions containing 
updated long-term strategies originally due July 31, 2018, and every 
ten years thereafter. (64 FR 35768, July 1, 1999). The EPA established 
in the 1999 RHR that all states either have Class I areas within their 
borders or ``contain sources whose emissions are reasonably anticipated 
to contribute to regional haze in a Class I area''; therefore, all 
states must submit regional haze SIPs.\5\ (64 FR 35721, July 1, 1999).
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    \4\ The RHR expresses the statutory requirement for states to 
submit plans addressing out-of-state class I areas by providing that 
states must address visibility impairment ``in each mandatory Class 
I Federal area located outside the State that may be affected by 
emissions from within the State.'' 40 CFR 51.308(d), (f).
    \5\ In addition to each of the fifty states, the EPA also 
concluded that the Virgin Islands and District of Columbia must also 
submit regional haze SIPs because they either contain a Class I area 
or contain sources whose emissions are reasonably anticipated to 
contribute regional haze in a Class I area. See 40 CFR 51.300(b), 
(d)(3).
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    Much of the focus in the first implementation period of the 
regional haze program, which ran from 2007 through 2018, was on 
satisfying states' BART obligations. First implementation period SIPs 
were additionally required to contain long-term strategies for making 
reasonable progress toward the national visibility goal, of which BART 
is one component. The core required elements for the first 
implementation period SIPs (other than BART) are laid out in 40 CFR 
51.308(d). Those provisions required that states containing Class I 
areas establish reasonable progress goals (RPGs) that are measured in 
deciviews and reflect the anticipated visibility conditions at the end 
of the implementation period, including from implementation of states' 
long-term strategies. The first planning period RPGs were required to 
provide for an improvement in visibility for the most impaired days 
over the period of the implementation plan and ensure no degradation in 
visibility for the least impaired days over the same period. In 
establishing the RPGs for any Class I area in a state, the state was 
required to consider four statutory factors: the costs of compliance, 
the time necessary for compliance, the energy and non-air quality 
environmental impacts of compliance, and the remaining useful life of 
any potentially affected sources. CAA 169A(g)(1); 40 CFR 51.308(d)(1).
    States were also required to calculate baseline (using the five 
year period of 2000-2004) and natural visibility conditions (i.e., 
visibility conditions without anthropogenic visibility impairment) for 
each Class I area, and to calculate the linear rate of progress needed 
to attain natural visibility conditions, assuming a starting point of 
baseline visibility conditions in 2004 and ending with natural 
conditions in 2064. This linear interpolation is known as the uniform 
rate of progress (URP) and is used as a tracking metric to help states 
assess the amount of progress they are making towards the national 
visibility goal over time in each Class I area.\6\ 40 CFR 
51.308(d)(1)(i)(B), (d)(2). The 1999 RHR also provided that States' 
long-term strategies must include the ``enforceable emissions 
limitations, compliance, schedules, and other measures as necessary to 
achieve the reasonable progress goals.'' 40 CFR 51.308(d)(3). In 
establishing their long-term strategies, states are required to consult 
with other states that also contribute to visibility impairment in a 
given Class I area and include all measures necessary to obtain their 
shares of the emission reductions needed to meet the RPGs. 40 CFR 
51.308(d)(3)(i), (ii). Section 51.308(d) also contains seven additional 
factors states must consider in formulating their long-term strategies, 
40 CFR 51.308(d)(3)(v), as well as provisions governing monitoring and 
other implementation plan requirements. 40 CFR 51.308(d)(4). Finally, 
the 1999 RHR required states to submit periodic progress reports--SIP 
revisions due every five years that contain information on states' 
implementation of their regional haze plans and an assessment of 
whether anything additional is needed to make reasonable progress, see 
40 CFR 51.308(g), (h)--and to consult with the Federal Land Manager(s) 
\7\ (FLMs) responsible for each Class I area according to the 
requirements in CAA 169A(d) and 40 CFR 51.308(i).
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    \6\ EPA established the URP framework in the 1999 RHR to provide 
``an equitable analytical approach'' to assessing the rate of 
visibility improvement at Class I areas across the country. The 
start point for the URP analysis is 2004 and the endpoint was 
calculated based on the amount of visibility improvement that was 
anticipated to result from implementation of existing CAA programs 
over the period from the mid-1990s to approximately 2005. Assuming 
this rate of progress would continue into the future, EPA determined 
that natural visibility conditions would be reached in 60 years, or 
2064 (60 years from the baseline starting point of 2004). However, 
EPA did not establish 2064 as the year by which the national goal 
must be reached. (64 FR 35731-32, July 1, 1999). That is, the URP 
and the 2064 date are not enforceable targets, but are rather tools 
that ``allow for analytical comparisons between the rate of progress 
that would be achieved by the state's chosen set of control measures 
and the URP.'' (82 FR 3078, 3084, January 10, 2017).
    \7\ The EPA's regulations define ``Federal Land Manager'' as 
``the Secretary of the department with authority over the Federal 
Class I area (or the Secretary's designee) or, with respect to 
Roosevelt-Campobellow International Park, the Chairman of the 
Roosevelt-Campobellow International Park Commission.'' 40 CFR 
51.301.
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    On January 10, 2017, the EPA promulgated revisions to the RHR, (82 
FR 3078, January 10, 2017), that apply for the second and subsequent 
implementation periods. The 2017 rulemaking made several changes to the 
requirements for regional haze SIPs to clarify States' obligations and 
streamline certain regional haze requirements. The revisions to the 
regional haze program for the second and subsequent implementation 
periods focused on the requirement that States' SIPs contain long-term 
strategies for making reasonable progress towards the national 
visibility goal. The reasonable progress requirements as revised in the 
2017 rulemaking (referred to here as the 2017 RHR Revisions) are 
codified at 40 CFR 51.308(f). Among other changes, the 2017 RHR 
Revisions adjusted the deadline for States to submit their second 
implementation period SIPs from July 31, 2018, to July 31, 2021, 
clarified the order of analysis and the relationship between RPGs and 
the long-term strategy, and focused on making visibility improvements 
on the days with the most anthropogenic visibility impairment, as 
opposed to the days with the most visibility impairment overall. The 
EPA also revised requirements of the visibility protection program 
related to periodic progress reports and FLM consultation.

[[Page 20387]]

The specific requirements applicable to second implementation period 
regional haze SIP submissions are addressed in detail below.
    The EPA provided guidance to the states for their second 
implementation period SIP submissions in the preamble to the 2017 RHR 
Revisions as well as in subsequent, stand-alone guidance documents. In 
August 2019, the EPA issued ``Guidance on Regional Haze State 
Implementation Plans for the Second Implementation Period'' (``2019 
Guidance'').\8\ On July 8, 2021, the EPA issued a memorandum containing 
``Clarifications Regarding Regional Haze State Implementation Plans for 
the Second Implementation Period'' (``2021 Clarifications Memo'').\9\ 
Additionally, the EPA further clarified the recommended procedures for 
processing ambient visibility data and optionally adjusting the URP to 
account for international anthropogenic and prescribed fire impacts in 
two technical guidance documents: the December 2018 ``Technical 
Guidance on Tracking Visibility Progress for the Second Implementation 
Period of the Regional Haze Program'' (``2018 Visibility Tracking 
Guidance''),\10\ and the June 2020 ``Recommendation for the Use of 
Patched and Substituted Data and Clarification of Data Completeness for 
Tracking Visibility Progress for the Second Implementation Period of 
the Regional Haze Program'' and associated Technical Addendum (``2020 
Data Completeness Memo'').\11\
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    \8\ Guidance on Regional Haze State Implementation Plans for the 
Second Implementation Period. https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period. The EPA Office of Air Quality Planning and 
Standards, Research Triangle Park (August 20, 2019).
    \9\ Clarifications Regarding Regional Haze State Implementation 
Plans for the Second Implementation Period. https://www.epa.gov/system/files/documents/2021-07/clarifications-regarding-regional-haze-state-implementation-plans-for-the-second-implementation-period.pdf. The EPA Office of Air Quality Planning and Standards, 
Research Triangle Park (July 8, 2021).
    \10\ Technical Guidance on Tracking Visibility Progress for the 
Second Implementation Period of the Regional Haze Program. https://www.epa.gov/visibility/technical-guidance-tracking-visibility-progress-second-implementation-period-regional. The EPA Office of 
Air Quality Planning and Standards, Research Triangle Park. 
(December 20, 2018).
    \11\ Recommendation for the Use of Patched and Substituted Data 
and Clarification of Data Completeness for Tracking Visibility 
Progress for the Second Implementation Period of the Regional Haze 
Program. https://www.epa.gov/visibility/memo-and-technical-addendum-ambient-data-usage-and-completeness-regional-haze-program. The EPA 
Office of Air Quality Planning and Standards, Research Triangle Park 
(June 3, 2020).
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    As previously explained in the 2021 Clarifications Memo, EPA 
intends the second implementation period of the regional haze program 
to secure meaningful reductions in visibility impairing pollutants that 
build on the significant progress states have achieved to date. The 
Agency also recognizes that analyses regarding reasonable progress are 
state-specific and that, based on states' and sources' individual 
circumstances, what constitutes reasonable reductions in visibility 
impairing pollutants will vary from state-to-state. While there exist 
many opportunities for states to leverage both ongoing and upcoming 
emission reductions under other CAA programs, the Agency expects states 
to undertake rigorous reasonable progress analyses that identify 
further opportunities to advance the national visibility goal 
consistent with the statutory and regulatory requirements. See 2021 
Clarifications Memo. This is consistent with Congress's determination 
that a visibility protection program is needed in addition to the CAA's 
National Ambient Air Quality Standards and Prevention of Significant 
Deterioration programs, as further emission reductions may be necessary 
to adequately protect visibility in Class I areas throughout the 
country.\12\
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    \12\ See, e.g., H.R. Rep No. 95-294 at 205 (``In determining how 
to best remedy the growing visibility problem in these areas of 
great scenic importance, the committee realizes that as a matter of 
equity, the national ambient air quality standards cannot be revised 
to adequately protect visibility in all areas of the country.''), 
(``the mandatory class I increments of [the PSD program] do not 
adequately protect visibility in class I areas'').
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B. Roles of Agencies in Addressing Regional Haze

    Because the air pollutants and pollution affecting visibility in 
Class I areas can be transported over long distances, successful 
implementation of the regional haze program requires long-term, 
regional coordination among multiple jurisdictions and agencies that 
have responsibility for Class I areas and the emissions that impact 
visibility in those areas. In order to address regional haze, states 
need to develop strategies in coordination with one another, 
considering the effect of emissions from one jurisdiction on the air 
quality in another. Five regional planning organizations (RPOs),\13\ 
which include representation from state and Tribal governments, the 
EPA, and FLMs, were developed in the lead-up to the first 
implementation period to address regional haze. RPOs evaluate technical 
information to better understand how emissions from State and Tribal 
land impact Class I areas across the country, pursue the development of 
regional strategies to reduce emissions of particulate matter and other 
pollutants leading to regional haze, and help states meet the 
consultation requirements of the RHR.
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    \13\ RPOs are sometimes also referred to as ``multi-
jurisdictional organizations,'' or MJOs. For the purposes of this 
notice, the terms RPO and MJO are synonymous.
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    The Mid-Atlantic/Northeast Visibility Union (MANE-VU), one of the 
five RPOs described above, is a collaborative effort of state 
governments, Tribal governments, and various Federal agencies 
established to initiate and coordinate activities associated with the 
management of regional haze, visibility, and other air quality issues 
in the Mid-Atlantic and Northeast corridor of the United States. Member 
states and Tribal governments (listed alphabetically) include: 
Connecticut, Delaware, the District of Columbia, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, 
Penobscot Indian Nation, Rhode Island, St. Regis Mohawk Tribe, and 
Vermont. The Federal partner members of MANE-VU are EPA, U.S. National 
Parks Service (NPS), U.S. Fish and Wildlife Service (FWS), and U.S. 
Forest Service (USFS).

III. Requirements for Regional Haze Plans for the Second Implementation 
Period

    Under the CAA and EPA's regulations, all 50 states, the District of 
Columbia, and the U.S. Virgin Islands are required to submit regional 
haze SIPs satisfying the applicable requirements for the second 
implementation period of the regional haze program by July 31, 2021. 
Each state's SIP must contain a long-term strategy for making 
reasonable progress toward meeting the national goal of remedying any 
existing and preventing any future anthropogenic visibility impairment 
in Class I areas. CAA 169A(b)(2)(B). To this end, 40 CFR 51.308(f) lays 
out the process by which states determine what constitutes their long-
term strategies, with the order of the requirements in 40 CFR 
51.308(f)(1) through (f)(3) generally mirroring the order of the steps 
in the reasonable progress analysis \14\ and (f)(4) through (6) 
containing additional, related requirements. Broadly speaking, a state 
first must identify the Class I areas within the state and determine 
the Class I areas outside the state in which visibility may be affected 
by emissions from the state. These are the Class I areas that must be 
addressed in the

[[Page 20388]]

state's long-term strategy. See 40 CFR 51.308(f), (f)(2). For each 
Class I area within its borders, a state must then calculate the 
baseline, current, and natural visibility conditions for that area, as 
well as the visibility improvement made to date and the URP. See 40 CFR 
51.308(f)(1). Each state having a Class I area and/or emissions that 
may affect visibility in a Class I area must then develop a long-term 
strategy that includes the enforceable emission limitations, compliance 
schedules, and other measures that are necessary to make reasonable 
progress in such areas. Reasonable progress is determined by applying 
the four factors in CAA section 169A(g)(1) to sources of visibility-
impairing pollutants that the state has selected to assess for controls 
for the second implementation period. See 40 CFR 51.308(f)(2). A state 
evaluates potential emission reduction measures for those selected 
sources and determines which are necessary to make reasonable progress 
using the four statutory factors. Those measures are then incorporated 
into the state's long-term strategy. After a state has developed its 
long-term strategy, it then establishes RPGs for each Class I area 
within its borders by modeling the visibility impacts of all reasonable 
progress controls at the end of the second implementation period, i.e., 
in 2028, as well as the impacts of other requirements of the CAA. The 
RPGs include reasonable progress controls not only for sources in the 
state in which the Class I area is located, but also for sources in 
other states that contribute to visibility impairment in that area. The 
RPGs are then compared to the baseline visibility conditions and the 
URP to ensure that progress is being made towards the statutory goal of 
preventing any future and remedying any existing anthropogenic 
visibility impairment in Class I areas. 40 CFR 51.308(f)(2) through 
(3).
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    \14\ EPA explained in the 2017 RHR Revisions that we were 
adopting new regulatory language in 40 CFR 51.308(f) that, unlike 
the structure in Sec.  51.308(d), ``tracked the actual planning 
sequence.'' (82 FR 3091, January 10, 2017).
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    In addition to satisfying the requirements at 40 CFR 51.308(f) 
related to reasonable progress, the SIP submissions due by July 31, 
2021, for the second implementation period must address the 
requirements in 40 CFR 51.308(g)(1) through (5) pertaining to periodic 
reports describing progress towards the RPGs, 40 CFR 51.308(f)(5), as 
well as requirements for FLM consultation that apply to all visibility 
protection SIPs and SIP revisions. 40 CFR 51.308(i).
    A state must submit its regional haze SIP and subsequent SIP 
revisions to the EPA according to the requirements applicable to all 
SIP revisions under the CAA and EPA's regulations. See CAA 169A(b)(2); 
CAA 110(a). Upon EPA approval, a SIP is enforceable by the Agency and 
the public under the CAA. If EPA finds that a state fails to make a 
required SIP revision, or if the EPA finds that a state's SIP is 
incomplete or if the EPA disapproves a state's SIP, the Agency must 
promulgate a Federal implementation plan (FIP) that satisfies the 
applicable requirements. CAA 110(c)(1).

A. Identification of Class I Areas

    The SIP revision submission due by July 31, 2021, ``must address 
regional haze in each mandatory Class I Federal area located within the 
State and in each mandatory Class I Federal area located outside the 
State that may be affected by emissions from within the State.'' 40 CFR 
51.308(f); see also 40 CFR 51.308(f)(2).\15\ Thus, the first step in 
developing a regional haze SIP is for a state to determine which Class 
I areas, in addition to those within its borders, ``may be affected'' 
by emissions from within the state. In the 1999 RHR, the EPA determined 
that all states contribute to visibility impairment in at least one 
Class I area, (64 FR 35720-22, July 1, 1999) and explained that the 
statute and regulations lay out an ``extremely low triggering 
threshold'' for determining ``whether States should be required to 
engage in air quality planning and analysis as a prerequisite to 
determining the need for control of emissions from sources within their 
State.'' Id. at 35721.
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    \15\ The RHR uses the phrase ``that may be affected by emissions 
from the State'' to implement CAA 169A(b)(2)'s requirement that a 
state ``the emissions from which may reasonably be anticipated to 
cause or contribute to any impairment of visibility'' submit a SIP.
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    A state must determine which Class I areas must be addressed by its 
SIP by evaluating the total emissions of visibility impairing 
pollutants from all sources within the state. While the RHR does not 
require this evaluation to be conducted in any particular manner, EPA's 
2019 Guidance provides recommendations for how such an assessment might 
be accomplished, including by, where appropriate, using the 
determinations previously made for the first implementation period. 
2019 Guidance at 8-9. In addition, the determination of which Class I 
areas may be affected by a state's emissions is subject to the 
requirement in 40 CFR 51.308(f)(2)(iii) to ``document the technical 
basis, including modeling, monitoring, cost, engineering, and emissions 
information, on which the State is relying to determine the emission 
reduction measures that are necessary to make reasonable progress in 
each mandatory Class I Federal area it affects.''

B. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress

    As part of assessing whether a SIP submission for the second 
implementation period is providing for reasonable progress towards the 
national visibility goal, the RHR contains requirements in 40 CFR 
51.308(f)(1) related to tracking visibility improvement over time. The 
requirements of this subsection apply only to states having Class I 
areas within their borders; the required calculations must be made for 
each such Class I area. EPA's 2018 Visibility Tracking Guidance \16\ 
provides recommendations to assist states in satisfying their 
obligations under 40 CFR 51.308(f)(1); specifically, in developing 
information on baseline, current, and natural visibility conditions, 
and in making optional adjustments to the URP to account for the 
impacts of international anthropogenic emissions and prescribed fires. 
See 82 FR 3103-0 (Jan. 10, 2017).
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    \16\ The 2018 Visibility Tracking Guidance references and relies 
on parts of the 2003 Tracking Guidance: ``Guidance for Tracking 
Progress Under the Regional Haze Rule,'' which can be found at 
https://www3.epa.gov/ttnamti1/files/ambient/visible/tracking.pdf.
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    The RHR requires tracking of visibility conditions on two sets of 
days: the clearest and the most impaired days. Visibility conditions 
for both sets of days are expressed as the average deciview index for 
the relevant five-year period (the period representing baseline or 
current visibility conditions). The RHR provides that the relevant sets 
of days for visibility tracking purposes are the 20% clearest (the 20% 
of monitored days in a calendar year with the lowest values of the 
deciview index) and 20% most impaired days (the 20% of monitored days 
in a calendar year with the highest amounts of anthropogenic visibility 
impairment).\17\ 40 CFR 51.301. A state must calculate visibility 
conditions for both the 20% clearest and 20% most impaired days for the 
baseline period of 2000-2004 and the most recent five-year period for 
which visibility monitoring data are available (representing current 
visibility conditions). 40 CFR 51.308(f)(1)(i), (iii). States must also 
calculate natural visibility conditions for the clearest and most 
impaired days,\18\ by estimating the

[[Page 20389]]

conditions that would exist on those two sets of days absent 
anthropogenic visibility impairment. 40 CFR 51.308(f)(1)(ii). Using all 
these data, states must then calculate, for each Class I area, the 
amount of progress made since the baseline period (2000-2004) and how 
much improvement is left to achieve in order to reach natural 
visibility conditions.
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    \17\ This notice also refers to the 20% clearest and 20% most 
anthropogenically impaired days as the ``clearest'' and ``most 
impaired'' or ``most anthropogenically impaired'' days, 
respectively.
    \18\ The RHR at 40 CFR 51.308(f)(1)(ii) contains an error 
related to the requirement for calculating two sets of natural 
conditions values. The rule states ``most impaired days or the 
clearest days'' where it should say ``most impaired days and 
clearest days.'' This is an error that was intended to be corrected 
in the 2017 RHR Revisions but did not get corrected in the final 
rule language. This is supported by the preamble text at 82 FR 3098: 
``In the final version of 40 CFR 51.308(f)(1)(ii), an occurrence of 
``or'' has been corrected to ``and'' to indicate that natural 
visibility conditions for both the most impaired days and the 
clearest days must be based on available monitoring information.''
---------------------------------------------------------------------------

    Using the data for the set of most impaired days only, states must 
plot a line between visibility conditions in the baseline period and 
natural visibility conditions for each Class I area to determine the 
URP--the amount of visibility improvement, measured in deciviews, that 
would need to be achieved during each implementation period in order to 
achieve natural visibility conditions by the end of 2064. The URP is 
used in later steps of the reasonable progress analysis for 
informational purposes and to provide a non-enforceable benchmark 
against which to assess a Class I area's rate of visibility 
improvement.\19\ Additionally, in the 2017 RHR Revisions, the EPA 
provided states the option of proposing to adjust the endpoint of the 
URP to account for impacts of anthropogenic sources outside the United 
States and/or impacts of certain types of wildland prescribed fires. 
These adjustments, which must be approved by the EPA, are intended to 
avoid any perception that states should compensate for impacts from 
international anthropogenic sources and to give states the flexibility 
to determine that limiting the use of wildland-prescribed fire is not 
necessary for reasonable progress. 82 FR 3107 footnote 116.
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    \19\ Being on or below the URP is not a ``safe harbor''; i.e., 
achieving the URP does not mean that a Class I area is making 
``reasonable progress'' and does not relieve a state from using the 
four statutory factors to determine what level of control is needed 
to achieve such progress. See, e.g., 82 FR 3093 (Jan. 10, 2017).
---------------------------------------------------------------------------

    EPA's 2018 Visibility Tracking Guidance can be used to help satisfy 
the 40 CFR 51.308(f)(1) requirements, including in developing 
information on baseline, current, and natural visibility conditions, 
and in making optional adjustments to the URP. In addition, the 2020 
Data Completeness Memo provides recommendations on the data 
completeness language referenced in 40 CFR 51.308(f)(1)(i) and provides 
updated natural conditions estimates for each Class I area.

C. Long-Term Strategy for Regional Haze

    The core component of a regional haze SIP submission is a long-term 
strategy that addresses regional haze in each Class I area within a 
state's borders and each Class I area that may be affected by emissions 
from the state. The long-term strategy ``must include the enforceable 
emissions limitations, compliance schedules, and other measures that 
are necessary to make reasonable progress, as determined pursuant to 
(f)(2)(i) through (iv).'' 40 CFR 51.308(f)(2). The amount of progress 
that is ``reasonable progress'' is determined by applying the four 
statutory factors in CAA section 169A(g)(1) in an evaluation of 
potential control options for sources of visibility impairing 
pollutants, which is referred to as a ``four-factor'' analysis.\20\ The 
outcome of that analysis is the emission reduction measures that a 
particular source or group of sources needs to implement in order to 
make reasonable progress towards the national visibility goal. See 40 
CFR 51.308(f)(2)(i). Emission reduction measures that are necessary to 
make reasonable progress may be either new, additional control measures 
for a source, or they may be the existing emission reduction measures 
that a source is already implementing. See 2019 Guidance at 43; 2021 
Clarifications Memo at 8-10. Such measures must be represented by 
``enforceable emissions limitations, compliance schedules, and other 
measures'' (i.e., any additional compliance tools) in a state's long-
term strategy in its SIP. 40 CFR 51.308(f)(2).
---------------------------------------------------------------------------

    \20\ Per CAA section 169A(g)(1), in determining reasonable 
progress states must take into consideration ``the costs of 
compliance, the time necessary for compliance, and the energy and 
non-air quality environmental impacts of compliance, and the 
remaining useful life of any existing source subject to such 
requirements.'' 42 U.S.C. 7491(g)(1).
---------------------------------------------------------------------------

    Section 51.308(f)(2)(i) provides the requirements for the four-
factor analysis. The first step of this analysis entails selecting the 
sources to be evaluated for emission reduction measures; to this end, 
the RHR requires states to consider ``major and minor stationary 
sources or groups of sources, mobile sources, and area sources'' of 
visibility impairing pollutants for potential four-factor control 
analysis. 40 CFR 51.308(f)(2)(i). A threshold question at this step is 
which visibility impairing pollutants will be analyzed. As EPA 
previously explained, consistent with the first implementation period, 
EPA generally expects that each state will analyze at least 
SO2 and NOX in selecting sources and determining 
control measures. See 2019 Guidance at 12, 2021 Clarifications Memo at 
4. A state that chooses not to consider at least these two pollutants 
should demonstrate why such consideration would be unreasonable. 2021 
Clarifications Memo at 4.
    While states have the option to analyze all sources, the 2019 
Guidance explains that ``an analysis of control measures is not 
required for every source in each implementation period,'' and that 
``[s]electing a set of sources for analysis of control measures in each 
implementation period is . . . consistent with the Regional Haze Rule, 
which sets up an iterative planning process and anticipates that a 
state may not need to analyze control measures for all its sources in a 
given SIP revision.'' 2019 Guidance at 9. However, given that source 
selection is the basis of all subsequent control determinations, a 
reasonable source selection process ``should be designed and conducted 
to ensure that source selection results in a set of pollutants and 
sources the evaluation of which has the potential to meaningfully 
reduce their contributions to visibility impairment.'' 2021 
Clarifications Memo at 3.
    EPA explained in the 2021 Clarifications Memo that each state has 
an obligation to submit a long-term strategy that addresses the 
regional haze visibility impairment that results from emissions from 
within that state. Thus, source selection should focus on the in-state 
contribution to visibility impairment and be designed to capture a 
meaningful portion of the state's total contribution to visibility 
impairment in Class I areas. A state should not decline to select its 
largest in-state sources on the basis that there are even larger out-
of-state contributors. 2021 Clarifications Memo at 4.\21\
---------------------------------------------------------------------------

    \21\ Similarly, in responding to comments on the 2017 RHR 
Revisions EPA explained that ``[a] state should not fail to address 
its many relatively low-impact sources merely because it only has 
such sources, and another state has even more low-impact sources 
and/or some high impact sources.'' Responses to Comments on 
Protection of Visibility: Amendments to Requirements for State 
Plans; Proposed Rule (81 FR 26942, May 4, 2016) at 87-88.
---------------------------------------------------------------------------

    Thus, while states have discretion to choose any source selection 
methodology that is reasonable, whatever choices they make should be 
reasonably explained and result in a set of sources which capture a 
meaningful portion of the state's total contribution to visibility 
impairment. To this end, 40 CFR 51.308(f)(2)(i) requires that a state's

[[Page 20390]]

SIP submission include ``a description of the criteria it used to 
determine which sources or groups of sources it evaluated.'' The 
technical basis for source selection, which may include methods for 
quantifying potential visibility impacts such as emissions divided by 
distance metrics, trajectory analyses, residence time analyses, and/or 
photochemical modeling, must also be appropriately documented, as 
required by 40 CFR 51.308(f)(2)(iii).
    Once a state has selected the set of sources, the next step is to 
determine the emissions reduction measures for those sources that are 
necessary to make reasonable progress for the second implementation 
period.\22\ This is accomplished by considering the four factors--``the 
costs of compliance, the time necessary for compliance, and the energy 
and non-air quality environmental impacts of compliance, and the 
remaining useful life of any existing source subject to such 
requirements.'' CAA 169A(g)(1). The EPA has explained that the four-
factor analysis is an assessment of potential emission reduction 
measures (i.e., control options) for sources; ``use of the terms 
`compliance' and `subject to such requirements' in section 169A(g)(1) 
strongly indicates that Congress intended the relevant determination to 
be the requirements with which sources would have to comply in order to 
satisfy the CAA's reasonable progress mandate.'' (82 FR 3091, Jan. 10, 
2017). Thus, for each source it has selected for four-factor 
analysis,\23\ a state must consider a ``meaningful set'' of technically 
feasible control options for reducing emissions of visibility impairing 
pollutants. Id. at 3088. The 2019 Guidance provides that ``[a] state 
must reasonably pick and justify the measures that it will consider, 
recognizing that there is no statutory or regulatory requirement to 
consider all technically feasible measures or any particular measures. 
A range of technically feasible measures available to reduce emissions 
would be one way to justify a reasonable set.'' 2019 Guidance at 29.
---------------------------------------------------------------------------

    \22\ The CAA provides that, ``[i]n determining reasonable 
progress there shall be taken into consideration'' the four 
statutory factors. CAA 169A(g)(1). However, in addition to four-
factor analyses for selected sources, groups of sources, or source 
categories, a state may also consider additional emission reduction 
measures for inclusion in its long-term strategy, e.g., from other 
newly adopted, on-the-books, or on-the-way rules and measures for 
sources not selected for four-factor analysis for the second 
planning period.
    \23\ ``Each source'' or ``particular source'' is used here as 
shorthand. While a source-specific analysis is one way of applying 
the four factors, neither the statute nor the RHR requires states to 
evaluate individual sources. Rather, states have ``the flexibility 
to conduct four-factor analyses for specific sources, groups of 
sources or even entire source categories, depending on state policy 
preferences and the specific circumstances of each state.'' (82 FR 
3088, Jan. 10, 2017). However, not all approaches to grouping 
sources for four-factor analysis are necessarily reasonable; the 
reasonableness of grouping sources in any particular instance will 
depend on the circumstances and the manner in which grouping is 
conducted. If it is feasible to establish and enforce different 
requirements for sources or subgroups of sources, and if relevant 
factors can be quantified for those sources or subgroups, then 
states should make a separate reasonable progress determination for 
each source or subgroup. 2021 Clarifications Memo at 7-8.
---------------------------------------------------------------------------

    EPA's 2021 Clarifications Memo provides further guidance on what 
constitutes a reasonable set of control options for consideration: ``A 
reasonable four-factor analysis will consider the full range of 
potentially reasonable options for reducing emissions.'' 2021 
Clarifications Memo at 7. In addition to add-on controls and other 
retrofits (i.e., new emission reduction measures for sources), EPA 
explained that states should generally analyze efficiency improvements 
for sources' existing measures as control options in their four-factor 
analyses, as in many cases such improvements are reasonable given that 
they typically involve only additional operation and maintenance costs. 
Additionally, the 2021 Clarifications Memo provides that states that 
have assumed a higher emission rate than a source has achieved or could 
potentially achieve using its existing measures should also consider 
lower emission rates as potential control options. That is, a state 
should consider a source's recent actual and projected emission rates 
to determine if it could reasonably attain lower emission rates with 
its existing measures. If so, the state should analyze the lower 
emission rate as a control option for reducing emissions. 2021 
Clarifications Memo at 7. The EPA's recommendations to analyze 
potential efficiency improvements and achievable lower emission rates 
apply to both sources that have been selected for four-factor analysis 
and those that have forgone a four-factor analysis on the basis of 
existing ``effective controls.'' See 2021 Clarifications Memo at 5, 10.
    After identifying a reasonable set of potential control options for 
the sources it has selected, a state then collects information on the 
four factors with regard to each option identified. The EPA has also 
explained that, in addition to the four statutory factors, states have 
flexibility under the CAA and RHR to reasonably consider visibility 
benefits as an optional fifth factor alongside the four statutory 
factors.\24\ The 2019 Guidance provides recommendations for the types 
of information that can be used to characterize the four factors (with 
or without visibility), as well as ways in which states might 
reasonably consider and balance that information to determine which of 
the potential control options is necessary to make reasonable progress. 
See 2019 Guidance at 30-36. The 2021 Clarifications Memo contains 
further guidance on how states can reasonably consider modeled 
visibility impacts or benefits in the context of a four-factor 
analysis. 2021 Clarifications Memo at 12-13, 14-15. Specifically, EPA 
explained that while visibility impacts can reasonably be considered 
when comparing and choosing between multiple reasonable control 
options, visibility should not be used to reject controls that are 
reasonable given the four statutory factors. 2021 Clarifications Memo 
at 13. Ultimately, while states have discretion to reasonably weigh the 
factors and to determine what level of control is needed, 40 CFR 
51.308(f)(2)(i) provides that a state ``must include in its 
implementation plan a description of . . . how the four factors were 
taken into consideration in selecting the measure for inclusion in its 
long-term strategy.''
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    \24\ See, e.g., Responses to Comments on Protection of 
Visibility: Amendments to Requirements for State Plans; Proposed 
Rule (81 FR 26942, May 4, 2016), Docket Number EPA-HQ-OAR-2015-0531, 
U.S. Environmental Protection Agency at 186; 2019 Guidance at 36-37.
---------------------------------------------------------------------------

    As explained above, 40 CFR 51.308(f)(2)(i) requires states to 
determine the emission reduction measures for sources that are 
necessary to make reasonable progress by considering the four factors. 
Pursuant to 40 CFR 51.308(f)(2), measures that are necessary to make 
reasonable progress towards the national visibility goal must be 
included in a state's long-term strategy and in its SIP.\25\ If the 
outcome of a four-factor analysis is a new, additional emission 
reduction measure for a source, that new measure is necessary to make 
reasonable progress towards remedying existing anthropogenic visibility 
impairment and

[[Page 20391]]

must be included in the SIP. If the outcome of a four-factor analysis 
is that no new measures are reasonable for a source, continued 
implementation of the source's existing measures is generally necessary 
to prevent future emission increases and thus to make reasonable 
progress towards the second part of the national visibility goal: 
preventing future anthropogenic visibility impairment. See CAA 
169A(a)(1). That is, when the result of a four-factor analysis is that 
no new measures are necessary to make reasonable progress, the source's 
existing measures are generally necessary to make reasonable progress 
and must be included in the SIP. However, there may be circumstances in 
which a state can demonstrate that a source's existing measures are not 
necessary to make reasonable progress. Specifically, if a state can 
demonstrate that a source will continue to implement its existing 
measures and will not increase its emission rate, it may not be 
necessary to have those measures in the long-term strategy in order to 
prevent future emission increases and future visibility impairment. 
EPA's 2021 Clarifications Memo provides further explanation and 
guidance on how states may demonstrate that a source's existing 
measures are not necessary to make reasonable progress. See 2021 
Clarifications Memo at 8-10. If the state can make such a 
demonstration, it need not include a source's existing measures in the 
long-term strategy or its SIP.
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    \25\ States may choose to, but are not required to, include 
measures in their long-term strategies beyond just the emission 
reduction measures that are necessary for reasonable progress. See 
2021 Clarifications Memo at 16. For example, states with smoke 
management programs may choose to submit their smoke management 
plans to EPA for inclusion in their SIPs but are not required to do 
so. See, e.g., 82 FR 3108-09, Jan. 10, 2017 (requirement to consider 
smoke management practices and smoke management programs under 40 
CFR 51.308(f)(2)(iv) does not require states to adopt such practices 
or programs into their SIPs, although they may elect to do so).
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    As with source selection, the characterization of information on 
each of the factors is also subject to the documentation requirement in 
40 CFR 51.308(f)(2)(iii). The reasonable progress analysis, including 
source selection, information gathering, characterization of the four 
statutory factors (and potentially visibility), balancing of the four 
factors, and selection of the emission reduction measures that 
represent reasonable progress, is a technically complex exercise, but 
also a flexible one that provides states with bounded discretion to 
design and implement approaches appropriate to their circumstances. 
Given this flexibility, 40 CFR 51.308(f)(2)(iii) plays an important 
function in requiring a state to document the technical basis for its 
decision making so that the public and the EPA can comprehend and 
evaluate the information and analysis the state relied upon to 
determine what emission reduction measures must be in place to make 
reasonable progress. The technical documentation must include the 
modeling, monitoring, cost, engineering, and emissions information on 
which the state relied to determine the measures necessary to make 
reasonable progress. This documentation requirement can be met through 
the provision of and reliance on technical analyses developed through a 
regional planning process, so long as that process and its output has 
been approved by all state participants. In addition to the explicit 
regulatory requirement to document the technical basis of their 
reasonable progress determinations, states are also subject to the 
general principle that those determinations must be reasonably moored 
to the statute.\26\ That is, a state's decisions about the emission 
reduction measures that are necessary to make reasonable progress must 
be consistent with the statutory goal of remedying existing and 
preventing future visibility impairment.
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    \26\ See Arizona ex rel. Darwin v. U.S. EPA, 815 F.3d 519, 531 
(9th Cir. 2016); Nebraska v. U.S. EPA, 812 F.3d 662, 668 (8th Cir. 
2016); North Dakota v. EPA, 730 F.3d 750, 761 (8th Cir. 2013); 
Oklahoma v. EPA, 723 F.3d 1201, 1206, 1208-10 (10th Cir. 2013); cf. 
also Nat'l Parks Conservation Ass'n v. EPA, 803 F.3d 151, 165 (3d 
Cir. 2015); Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 
461, 485, 490 (2004).
---------------------------------------------------------------------------

    The four statutory factors (and potentially visibility) are used to 
determine what emission reduction measures for selected sources must be 
included in a state's long-term strategy for making reasonable 
progress. Additionally, the RHR at 40 CFR 51.3108(f)(2)(iv) separately 
provides five ``additional factors'' \27\ that states must consider in 
developing their long-term strategies: (1) Emission reductions due to 
ongoing air pollution control programs, including measures to address 
reasonably attributable visibility impairment; (2) measures to reduce 
the impacts of construction activities; (3) source retirement and 
replacement schedules; (4) basic smoke management practices for 
prescribed fire used for agricultural and wildland vegetation 
management purposes and smoke management programs; and (5) the 
anticipated net effect on visibility due to projected changes in point, 
area, and mobile source emissions over the period addressed by the 
long-term strategy. The 2019 Guidance provides that a state may satisfy 
this requirement by considering these additional factors in the process 
of selecting sources for four-factor analysis, when performing that 
analysis, or both, and that not every one of the additional factors 
needs to be considered at the same stage of the process. See 2019 
Guidance at 21. EPA provided further guidance on the five additional 
factors in the 2021 Clarifications Memo, explaining that a state should 
generally not reject cost-effective and otherwise reasonable controls 
merely because there have been emission reductions since the first 
planning period owing to other ongoing air pollution control programs 
or merely because visibility is otherwise projected to improve at Class 
I areas. Additionally, states should not rely on these additional 
factors to summarily assert that the state has already made sufficient 
progress and, therefore, no sources need to be selected or no new 
controls are needed regardless of the outcome of four-factor analyses. 
States can, however, consider these factors in a more tailored manner, 
e.g., in choosing between multiple control options when all are 
reasonable based on the four statutory factors.\28\ 2021 Clarifications 
Memo at 13.
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    \27\ The five ``additional factors'' for consideration in Sec.  
51.308(f)(2)(iv) are distinct from the four factors listed in CAA 
section 169A(g)(1) and 40 CFR 51.308(f)(2)(i) that states must 
consider and apply to sources in determining reasonable progress.
    \28\ In particular, EPA explained in the 2021 Clarifications 
Memo that states should not rely on the considerations in 40 CFR 
51.308(f)(2)(iv)(A) and (E) to summarily assert that the state has 
already made sufficient progress and therefore does not need to 
achieve any additional emission reductions. 2021 Clarifications Memo 
at 13.
---------------------------------------------------------------------------

    Because the air pollution that causes regional haze crosses state 
boundaries, 40 CFR 51.308(f)(2)(ii) requires a state to consult with 
other states that also have emissions that are reasonably anticipated 
to contribute to visibility impairment in a given Class I area. 
Consultation allows for each state that impacts visibility in an area 
to share whatever technical information, analyses, and control 
determinations may be necessary to develop coordinated emission 
management strategies. This coordination may be managed through inter- 
and intra-RPO consultation and the development of regional emissions 
strategies; additional consultations between states outside of RPO 
processes may also occur. If a state, pursuant to consultation, agrees 
that certain measures (e.g., a certain emission limitation) are 
necessary to make reasonable progress at a Class I area, it must 
include those measures in its SIP. 40 CFR 51.308(f)(2)(ii)(A). 
Additionally, the RHR requires that states that contribute to 
visibility impairment at the same Class I area consider the emission 
reduction measures the other contributing states have identified as 
being necessary to make reasonable progress for their own sources. 40 
CFR 51.308(f)(2)(ii)(B). If a state has been asked to consider or adopt 
certain emission reduction measures, but ultimately determines

[[Page 20392]]

those measures are not necessary to make reasonable progress, that 
state must document in its SIP the actions taken to resolve the 
disagreement. 40 CFR 51.308(f)(2)(ii)(C). The EPA will consider the 
technical information and explanations presented by the submitting 
state and the state with which it disagrees when considering whether to 
approve the state's SIP. See id.; 2019 Guidance at 53. Under all 
circumstances, a state must document in its SIP submission all 
substantive consultations with other contributing states. 40 CFR 
51.308(f)(2)(ii)(C).

D. Reasonable Progress Goals

    Reasonable progress goals ``measure the progress that is projected 
to be achieved by the control measures states have determined are 
necessary to make reasonable progress based on a four-factor 
analysis.'' (82 FR 3091, Jan. 10, 2017). Their primary purpose is to 
assist the public and the EPA in assessing the reasonableness of 
states' long-term strategies for making reasonable progress towards the 
national visibility goal. See 40 CFR 51.308(f)(3)(iii) through (iv). 
States in which Class I areas are located must establish two RPGs, both 
in deciviews--one representing visibility conditions on the clearest 
days and one representing visibility on the most anthropogenically 
impaired days--for each area within their borders. 40 CFR 
51.308(f)(3)(i). The two RPGs are intended to reflect the projected 
impacts, on the two sets of days, of the emission reduction measures 
the state with the Class I area, as well as all other contributing 
states, have included in their long-term strategies for the second 
implementation period.\29\ The RPGs also account for the projected 
impacts of implementing other CAA requirements, including non-SIP based 
requirements. Because RPGs are the modeled result of the measures in 
states' long-term strategies (as well as other measures required under 
the CAA), they cannot be determined before states have conducted their 
four-factor analyses and determined the control measures that are 
necessary to make reasonable progress. See 2021 Clarifications Memo at 
6.
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    \29\ RPGs are intended to reflect the projected impacts of the 
measures all contributing states include in their long-term 
strategies. However, due to the timing of analyses and of control 
determinations by other states, other on-going emissions changes, a 
particular state's RPGs may not reflect all control measures and 
emissions reductions that are expected to occur by the end of the 
implementation period. The 2019 Guidance provides recommendations 
for addressing the timing of RPG calculations when states are 
developing their long-term strategies on disparate schedules, as 
well as for adjusting RPGs using a post-modeling approach. 2019 
Guidance at 47-48.
---------------------------------------------------------------------------

    For the second implementation period, the RPGs are set for 2028. 
Reasonable progress goals are not enforceable targets, 40 CFR 
51.308(f)(3)(iii); rather, they ``provide a way for the states to check 
the projected outcome of the [long-term strategy] against the goals for 
visibility improvement.'' 2019 Guidance at 46. While states are not 
legally obligated to achieve the visibility conditions described in 
their RPGs, 40 CFR 51.308(f)(3)(i) requires that ``[t]he long-term 
strategy and the reasonable progress goals must provide for an 
improvement in visibility for the most impaired days since the baseline 
period and ensure no degradation in visibility for the clearest days 
since the baseline period.'' Thus, states are required to have emission 
reduction measures in their long-term strategies that are projected to 
achieve visibility conditions on the most impaired days that are better 
than the baseline period and shows no degradation on the clearest days 
compared to the clearest days from the baseline period. The baseline 
period for the purpose of this comparison is the baseline visibility 
condition--the annual average visibility condition for the period 2000-
2004. See 40 CFR 51.308(f)(1)(i), (82 FR 3097-98, Jan. 10, 2017).
    So that RPGs may also serve as a metric for assessing the amount of 
progress a state is making towards the national visibility goal, the 
RHR requires states with Class I areas to compare the 2028 RPG for the 
most impaired days to the corresponding point on the URP line 
(representing visibility conditions in 2028 if visibility were to 
improve at a linear rate from conditions in the baseline period of 
2000-2004 to natural visibility conditions in 2064). If the most 
impaired days RPG in 2028 is above the URP (i.e., if visibility 
conditions are improving more slowly than the rate described by the 
URP), each state that contributes to visibility impairment in the Class 
I area must demonstrate, based on the four-factor analysis required 
under 40 CFR 51.308(f)(2)(i), that no additional emission reduction 
measures would be reasonable to include in its long-term strategy. 40 
CFR 51.308(f)(3)(ii). To this end, 40 CFR 51.308(f)(3)(ii) requires 
that each state contributing to visibility impairment in a Class I area 
that is projected to improve more slowly than the URP provide, ``a 
robust demonstration, including documenting the criteria used to 
determine which sources or groups [of] sources were evaluated and how 
the four factors required by paragraph (f)(2)(i) were taken into 
consideration in selecting the measures for inclusion in its long-term 
strategy.'' The 2019 Guidance provides suggestions about how such a 
``robust demonstration'' might be conducted. See 2019 Guidance at 50-
51.
    The 2017 RHR, 2019 Guidance, and 2021 Clarifications Memo also 
explain that projecting an RPG that is on or below the URP based on 
only on-the-books and/or on-the-way control measures (i.e., control 
measures already required or anticipated before the four-factor 
analysis is conducted) is not a ``safe harbor'' from the CAA's and 
RHR's requirement that all states must conduct a four-factor analysis 
to determine what emission reduction measures constitute reasonable 
progress. The URP is a planning metric used to gauge the amount of 
progress made thus far and the amount left before reaching natural 
visibility conditions. However, the URP is not based on consideration 
of the four statutory factors and therefore cannot answer the question 
of whether the amount of progress being made in any particular 
implementation period is ``reasonable progress.'' See 82 FR 3093, 3099-
3100 (Jan. 10, 2017); 2019 Guidance at 22; 2021 Clarifications Memo at 
15-16.

E. Monitoring Strategy and Other State Implementation Plan Requirements

    Section 51.308(f)(6) requires states to have certain strategies and 
elements in place for assessing and reporting on visibility. Individual 
requirements under this subsection apply either to states with Class I 
areas within their borders, states with no Class I areas but that are 
reasonably anticipated to cause or contribute to visibility impairment 
in any Class I area, or both. A state with Class I areas within its 
borders must submit with its SIP revision a monitoring strategy for 
measuring, characterizing, and reporting regional haze visibility 
impairment that is representative of all Class I areas within the 
state. SIP revisions for such states must also provide for the 
establishment of any additional monitoring sites or equipment needed to 
assess visibility conditions in Class I areas, as well as reporting of 
all visibility monitoring data to the EPA at least annually. Compliance 
with the monitoring strategy requirement may be met through a state's 
participation in the Interagency Monitoring of Protected Visual 
Environments (IMPROVE) monitoring network, which is used to measure 
visibility impairment caused by air pollution at the 156 Class I areas 
covered by the visibility program. 40

[[Page 20393]]

CFR 51.308(f)(6), (f)(6)(i), (f)(6)(iv). The IMPROVE monitoring data is 
used to determine the 20% most anthropogenically impaired and 20% 
clearest sets of days every year at each Class I area and tracks 
visibility impairment over time.
    All states' SIPs must provide for procedures by which monitoring 
data and other information are used to determine the contribution of 
emissions from within the state to regional haze visibility impairment 
in affected Class I areas. 40 CFR 51.308(f)(6)(ii), (iii). Section 
51.308(f)(6)(v) further requires that all states' SIPs provide for a 
statewide inventory of emissions of pollutants that are reasonably 
anticipated to cause or contribute to visibility impairment in any 
Class I area; the inventory must include emissions for the most recent 
year for which data are available and estimates of future projected 
emissions. States must also include commitments to update their 
inventories periodically. The inventories themselves do not need to be 
included as elements in the SIP and are not subject to EPA review as 
part of the Agency's evaluation of a SIP revision.\30\ All states' SIPs 
must also provide for any other elements, including reporting, 
recordkeeping, and other measures, that are necessary for states to 
assess and report on visibility. 40 CFR 51.308(f)(6)(vi). Per the 2019 
Guidance, a state may note in its regional haze SIP that its compliance 
with the Air Emissions Reporting Rule (AERR) in 40 CFR part 51 subpart 
A satisfies the requirement to provide for an emissions inventory for 
the most recent year for which data are available. To satisfy the 
requirement to provide estimates of future projected emissions, a state 
may explain in its SIP how projected emissions were developed for use 
in establishing RPGs for its own and nearby Class I areas.\31\
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    \30\ See ``Step 8: Additional requirements for regional haze 
SIPs'' in 2019 Regional Haze Guidance at 55.
    \31\ Id.
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    Separate from the requirements related to monitoring for regional 
haze purposes under 40 CFR 51.308(f)(6), the RHR also contains a 
requirement at 40 CFR 51.308(f)(4) related to any additional monitoring 
that may be needed to address visibility impairment in Class I areas 
from a single source or a small group of sources. This is called 
``reasonably attributable visibility impairment.'' \32\ Under this 
provision, if the EPA or the FLM of an affected Class I area has 
advised a state that additional monitoring is needed to assess 
reasonably attributable visibility impairment, the state must include 
in its SIP revision for the second implementation period an appropriate 
strategy for evaluating such impairment.
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    \32\ EPA's visibility protection regulations define ``reasonably 
attributable visibility impairment'' as ``visibility impairment that 
is caused by the emission of air pollutants from one, or a small 
number of sources.'' 40 CFR 51.301.
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F. Requirements for Periodic Reports Describing Progress Towards the 
Reasonable Progress Goals

    Section 51.308(f)(5) requires a state's regional haze SIP revision 
to address the requirements of paragraphs 40 CFR 51.308(g)(1) through 
(5) so that the plan revision due in 2021 will serve also as a progress 
report addressing the period since submission of the progress report 
for the first implementation period. The regional haze progress report 
requirement is designed to inform the public and the EPA about a 
state's implementation of its existing long-term strategy and whether 
such implementation is in fact resulting in the expected visibility 
improvement. See 81 FR 26942, 26950 (May 4, 2016); 82 FR 3119 (January 
10, 2017). To this end, every state's SIP revision for the second 
implementation period is required to describe the status of 
implementation of all measures included in the state's long-term 
strategy, including BART and reasonable progress emission reduction 
measures from the first implementation period, and the resulting 
emissions reductions. 40 CFR 51.308(g)(1) and (2).
    A core component of the progress report requirements is an 
assessment of changes in visibility conditions on the clearest and most 
impaired days. For second implementation period progress reports, 40 
CFR 51.308(g)(3) requires states with Class I areas within their 
borders to first determine current visibility conditions for each area 
on the most impaired and clearest days, 40 CFR 51.308(g)(3)(i), and 
then to calculate the difference between those current conditions and 
baseline (2000-2004) visibility conditions in order to assess progress 
made to date. See 40 CFR 51.308(g)(3)(ii). States must also assess the 
changes in visibility impairment for the most impaired and clearest 
days since they submitted their first implementation period progress 
reports. See 40 CFR 51.308(g)(3)(iii), (f)(5). Since different states 
submitted their first implementation period progress reports at 
different times, the starting point for this assessment will vary state 
by state.
    Similarly, states must provide analyses tracking the change in 
emissions of pollutants contributing to visibility impairment from all 
sources and activities within the state over the period since they 
submitted their first implementation period progress reports. See 40 
CFR 51.308(g)(4), (f)(5). Changes in emissions should be identified by 
the type of source or activity. Section 51.308(g)(5) also addresses 
changes in emissions since the period addressed by the previous 
progress report and requires states' SIP revisions to include an 
assessment of any significant changes in anthropogenic emissions within 
or outside the state. This assessment must include an explanation of 
whether these changes in emissions were anticipated and whether they 
have limited or impeded progress in reducing emissions and improving 
visibility relative to what the state projected based on its long-term 
strategy for the first implementation period.

G. Requirements for State and Federal Land Manager Coordination

    Clean Air Act section 169A(d) requires that before a state holds a 
public hearing on a proposed regional haze SIP revision, it must 
consult with the appropriate FLM or FLMs; pursuant to that 
consultation, the state must include a summary of the FLMs' conclusions 
and recommendations in the notice to the public. Consistent with this 
statutory requirement, the RHR also requires that states ``provide the 
[FLM] with an opportunity for consultation, in person and at a point 
early enough in the State's policy analyses of its long-term strategy 
emission reduction obligation so that information and recommendations 
provided by the [FLM] can meaningfully inform the State's decisions on 
the long-term strategy.'' 40 CFR 51.308(i)(2). Consultation that occurs 
120 days prior to any public hearing or public comment opportunity will 
be deemed ``early enough,'' but the RHR provides that in any event the 
opportunity for consultation must be provided at least 60 days before a 
public hearing or comment opportunity. This consultation must include 
the opportunity for the FLMs to discuss their assessment of visibility 
impairment in any Class I area and their recommendations on the 
development and implementation of strategies to address such 
impairment. 40 CFR 51.308(i)(2). In order for the EPA to evaluate 
whether FLM consultation meeting the requirements of the RHR has 
occurred, the SIP submission should include documentation of the timing 
and content of such consultation. The SIP revision submitted to the EPA 
must also describe how the state addressed any comments provided by the 
FLMs. 40 CFR 51.308(i)(3). Finally, a SIP revision must provide 
procedures for

[[Page 20394]]

continuing consultation between the state and FLMs regarding the 
state's visibility protection program, including development and review 
of SIP revisions, five-year progress reports, and the implementation of 
other programs having the potential to contribute to impairment of 
visibility in Class I areas. 40 CFR 51.308(i)(4).

IV. The EPA's Evaluation of New York's Regional Haze Submission for the 
Second Implementation Period

A. Background on New York's First Implementation Period SIP Submission

    NYSDEC submitted its regional haze SIP for the first implementation 
period to the EPA on March 15, 2010, and supplemented it on August 2, 
2010, April 16, 2012, and July 2, 2012. The EPA approved New York's 
first implementation period regional haze SIP submission on August 28, 
2012 (77 FR 51915). EPA's approval included, but was not limited to, 
seventeen source-specific SIP revisions containing permits for Best 
Available Retrofit Technology, revisions to Title 6 of the New York 
Codes, Rules and Regulations (NYCRR), Part 249, ``Best Available 
Retrofit Technology (BART),'' and revisions to section 19-0325 of the 
New York Environmental Conservation Law which regulates the sulfur 
content of fuel oil. Although New York State addressed most of the 
issues identified in EPA's proposal, EPA promulgated a Federal 
Implementation Plan to address two sources for which EPA disapproved 
New York's BART determinations. The requirements for regional haze SIPs 
for the first implementation period are contained in 40 CFR 51.308(d) 
and (e) and 40 CFR 51.308(b). Pursuant to 40 CFR 51.308(g), New York 
was also responsible for submitting a five-year progress report as a 
SIP revision for the first implementation period, which NYSDEC did on 
June 16, 2015. The EPA approved the progress report into the New York 
SIP on September 29, 2017 (82 FR 45499, September 29, 2017).

B. New York's Second Implementation Period SIP Submission and the EPA's 
Evaluation

    In accordance with CAA sections 169A and the RHR at 40 CFR 
51.308(f), on May 12, 2020,\33\ NYSDEC submitted a revision to the New 
York SIP to address the jurisdiction's regional haze obligations for 
the second implementation period, which runs through 2028. New York 
made its 2020 Regional Haze SIP submission available for public comment 
on August 7, 2019. NYSDEC received and responded to public comments and 
included the comments and responses to those comments in their 
submission to the EPA.
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    \33\ NYSDEC supplemented its SIP submission on February 16, 
2022.
---------------------------------------------------------------------------

    The following sections describe New York's SIP submission, 
including analyses conducted by MANE-VU and New York's determinations 
based on those analyses, New York's assessment of progress made since 
the first implementation period in reducing emissions of visibility 
impairing pollutants, and the visibility improvement progress at nearby 
Class I areas. This notice also contains EPA's evaluation of New York's 
submission against the requirements of the CAA and RHR for the second 
implementation period of the regional haze program.

C. Identification of Class I Areas

    Section 169A(b)(2) of the CAA requires each state in which any 
Class I area is located, or ``the emissions from which may reasonably 
be anticipated to cause or contribute to any impairment of visibility'' 
in a Class I area, to have a plan for making reasonable progress toward 
the national visibility goal. The RHR incorporates this statutory 
requirement at 40 CFR 51.308(f), which provides that each state's plan 
``must address regional haze in each mandatory Class I Federal area 
located within the State and in each mandatory Class I Federal area 
located outside the State that may be affected by emissions from within 
the State,'' and (f)(2), which requires each state's plan to include a 
long-term strategy that addresses regional haze in such Class I areas.
    The EPA explained in the 1999 RHR preamble that the CAA section 
169A(b)(2) requirement that states submit SIPs to address visibility 
impairment establishes ``an `extremely low triggering threshold' in 
determining which States should submit SIPs for regional haze.'' (64 FR 
35721, July 1, 1999). In concluding that each of the contiguous 48 
states and the District of Columbia meet this threshold,\34\ the EPA 
relied on ``a large body of evidence demonstrating that long-range 
transport of fine PM contributes to regional haze,'' id., including 
modeling studies that ``preliminarily demonstrated that each State not 
having a Class I area had emissions contributing to impairment in at 
least one downwind Class I area.'' Id. at 35722. In addition to the 
technical evidence supporting a conclusion that each state contributes 
to existing visibility impairment, the EPA also explained that the 
second half of the national visibility goal--preventing future 
visibility impairment--requires having a framework in place to address 
future growth in visibility-impairing emissions and makes it 
inappropriate to ``establish criteria for excluding States or 
geographic areas from consideration as potential contributors to 
regional haze visibility impairment.'' Id. at 35721. Thus, the EPA 
concluded that the agency's ``statutory authority and the scientific 
evidence are sufficient to require all States to develop regional haze 
SIPs to ensure the prevention of any future impairment of visibility, 
and to conduct further analyses to determine whether additional control 
measures are needed to ensure reasonable progress in remedying existing 
impairment in downwind Class I areas.'' Id. at 35722. EPA's 2017 
revisions to the RHR did not disturb this conclusion. See 82 FR 3094 
(July 10, 2017).
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    \34\ EPA determined that ``there is more than sufficient 
evidence to support our conclusion that emissions from each of the 
48 contiguous states and the District of Columbia may reasonably be 
anticipated to cause or contribute to visibility impairment in a 
Class I area.'' (64 FR 35721, July 1, 1999). Hawaii, Alaska, and the 
U.S. Virgin Islands must also submit regional haze SIPs because they 
contain Class I areas.
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    New York has no Class I areas within its borders. For the second 
implementation period, MANE-VU performed technical analyses \35\ to 
help inform source and state-level contributions to visibility 
impairment and the need for interstate consultation. MANE-VU used the 
results of these analyses to determine which states' emissions ``have a 
high likelihood of affecting visibility in MANE-VU's Class I areas.'' 
\36\ Similar to metrics used in the first implementation period,\37\ 
MANE-VU used a greater than 2 percent of sulfate plus nitrate emissions 
contribution criteria to determine whether emissions from individual 
jurisdictions within the region affected visibility in any Class I 
areas. The MANE-VU analyses for the second implementation period used a 
combination of data analysis techniques, including emissions data 
dispersion modeling. Although many of the analyses focused only on 
SO2 emissions and resultant particulate sulfate 
contributions to visibility impairment, some also incorporated 
NOX emissions to estimate particulate nitrate contributions.
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    \35\ The contribution assessment methodologies for MANE-VU Class 
I areas are summarized in appendix C of the NY RH 2nd Implementation 
Period SIP submission, ``Selection of States for MANE-VU Regional 
Haze Consultation (2018).''
    \36\ Id.
    \37\ See docket EPA-R02-OAR-2012-0296 for MANE-VU supporting 
materials.
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    One MANE-VU analysis used for contribution assessment was CALPUFF

[[Page 20395]]

air dispersion modeling.\38\ The CALPUFF model was used to estimate 
sulfate and nitrate formation and transport in MANE-VU and nearby 
regions from large electric generating unit (EGU) point sources and 
other large industrial and institutional sources in the eastern and 
central United States. Information from the initial round of CALPUFF 
modeling was collected on the 444 electric generating units (EGUs) that 
were determined to warrant further scrutiny based on their emissions of 
SO2 and NOX. The list of EGUs was based on 
enhanced ``Q/d'' analysis \39\ that considered recent SO2 
emissions in the eastern United States and an analysis that adjusted 
previous 2002 MANE-VU CALPUFF modeling by applying a ratio of the 2011 
to 2002 SO2 emissions. This list of sources was then 
enhanced by including the top five SO2 and NOX 
emission sources for 2011 for each state included in the modeling 
domain. A total of 311 EGU stacks (as opposed to individual units) were 
included in the CALPUFF modeling analysis. Initial information was also 
collected on the 50 industrial and institutional sources that, 
according to the 2011 Q/d analysis, contributed the most to visibility 
impacts in each Class I area. The ultimate CALPUFF modeling run 
included a total of 311 EGU stacks and 82 industrial facilities. The 
summary report for the CALPUFF modeling included the top 10 most 
impacting EGUs and the top five most impacting industrial/institutional 
sources for each Class I area and compiled those results into a ranked 
list of the most impacting EGUs and industrial sources at MANE-VU Class 
I areas.\40\
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    \38\ See page 6 of Appendix K of the NY RH 2nd Implementation 
Period SIP submission.
    \39\ ``Q/d'' is emissions (Q) in tons per year, typically of one 
or a combination of visibility-impairing pollutants, divided by 
distance to a class I area (d) in kilometers. The resulting ratio is 
commonly used as a metric to assess a source's potential visibility 
impacts on a particular class I area.
    \40\ See Tables 34 and 35 of appendix K of the NY RH 2nd 
Implementation Period SIP submission.
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    New York had three EGUs and four industrial sources that were 
included in the MANE-VU CALPUFF modeling.\41\ Somerset Operating 
Company, Oswego Harbor Power, and Cayuga Operating Company are the 
three EGU facilities identified by the modeling. Lafarge Building 
Materials Inc., Finch Paper LLC, International Paper Ticonderoga Mill, 
and Kodak Park Division are the four industrial/institutional (ICI) 
facilities identified by the modeling.
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    \41\ See appendix K, ``MANE-VU Source Contribution Modeling 
Report--CALPUFF Modeling of Large Electrical Generating Units and 
Industrial Sources (MANE-VU, April 2017)'' of the NY RH 2nd 
Implementation Period SIP submission.
---------------------------------------------------------------------------

    In its submittal, New York states that it has adopted revisions to 
6 NYCRR Part 251, Carbon Dioxide Performance Standards for Major 
Electric Generating Facilities ``to require all power plants in New 
York to meet new emissions limits for carbon dioxide 
(CO2).'' As a result of these revisions, New York's 
submittal indicates that Somerset Operating Company ceased operations 
after submitting their deactivation plan to New York Independent System 
Operator (NYISO). In its February 16, 2022, supplement to its 
submittal, New York stated that Somerset Operating Company retired its 
primary units on March 31, 2020 and that it was being demolished.\42\ 
New York's submittal addresses Oswego Harbor Power as follows. Oswego 
Harbor Power Emission Unit U00006 consists of one steam generator, Unit 
6, that provides steam to a turbine capable of producing 850 MW net of 
electricity. This unit can produce up to 245 MW by firing natural gas. 
Natural gas or distillate oil may be used to ignite the boiler during 
startup. The oil must have a sulfur content no greater than 0.5% by 
weight to be used in this unit. Unit 6 is subject to 40 CFR part 60, 
subpart D. Particulate emissions are controlled by an electrostatic 
precipitator (S006C). NOX emissions are controlled by over-
fire air and flue gas recirculation. SO2 emissions in 2017 
were 100.9 tons, compared to 373.4 tons in 2011. NOX 
emissions from Oswego Harbor Power were 59.7 tons, a decrease from 
101.6 tons in 2011. New York's submittal indicates that Cayuga 
Generating Station is no longer operating, but still retains its State 
Administrative Procedure Act (SAPA) \43\ extended permit.
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    \42\ See docket document ``FLM List Facility Controls''
    \43\ N.Y. Comp. Codes R. & Regs. tit. 82.
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    International Paper Ticonderoga Mill submitted an updated RACT 
analysis in September 2016 which set an emission limit of 0.23 lb 
NOX/MMBtu on the power boiler that burns natural gas. RED-
Rochester is located in the old Kodak Park and has converted coal-fired 
boiler #44 to natural gas with #2 fuel oil backup. Boiler #44 is rated 
at 694 MMBtu/hr on natural gas and 670 MMBtu/hr on No. 2 oil. The final 
conversion scenario decommissioned three boilers: \44\ the previously 
shut down 640 MBTU/hr coal fired Boiler 41, the 670 MBTU/hr coal fired 
Boiler 42 in March 2018, and the 640 MBTU/hr coal-fired Boiler 43 in 
March 2018. Four operating 98 MBTU/hr #6 fuel oil fired package boilers 
have been retained as limited use boilers. New York also asserts that 
the new natural gas boilers will significantly reduce both 
NOX and SO2 emissions compared to historical and 
NPS estimated emissions from the coal boilers. Finally, Lafarge 
Building Materials, Inc. and Finch Paper, LLC were selected for further 
analysis as part of the long-term strategy and will be discussed in a 
later section of this proposed rulemaking.
---------------------------------------------------------------------------

    \44\ RED-Rochester LLC Air Title V Permit. Available at https://www.dec.ny.gov/dardata/boss/afs/permits/826990012600001_r1.pdf.
---------------------------------------------------------------------------

    The second MANE-VU contribution analysis used a meteorologically 
weighted Q/d calculation to assess states' contributions to visibility 
impairment at MANE-VU Class I areas.\45\ This analysis focused 
predominantly on SO2 emissions and used the quantity of 
cumulative SO2 emissions from a source for the variable of 
``Q,'' and the distance of the source or state to the IMPROVE monitor 
receptor at a Class I area as ``d.'' The result is then multiplied by a 
constant (Ci), which is determined based on the prevailing 
wind patterns. MANE-VU selected a meteorologically weighted Q/d 
analysis as an inexpensive initial screening tool that could easily be 
repeated to determine which states, sectors, or sources have a larger 
relative impact and warrant further analysis. MANE-VU's analysis 
estimated New York's maximum sulfate contribution was 4.66% at any 
Class I area based on the maximum daily impact. The largest impacts 
from New York's sulfate contributions were to Lye Brook Wilderness, 
Vermont. Although MANE-VU did not originally estimate nitrate impacts, 
the MANE-VU Q/d analysis was extended to account for nitrate 
contributions from NOx emissions and to approximate the nitrate impacts 
from area and mobile sources. MANE-VU therefore developed a ratio of 
nitrate to sulfate impacts based on the previously described CALPUFF 
modeling and applied those to the sulfate Q/d results in order to 
derive nitrate contribution estimates. Several states did not have 
CALPUFF nitrate to sulfate ratio results, however, because there were 
no point sources modeled with CALPUFF.
---------------------------------------------------------------------------

    \45\ The methodology used by MANE-VU for the meteorological 
weighted Q/d analysis can be found in Appendix O of the NY RH 2nd 
Implementation Period SIP submission, ``MANE-VU Updated Q/d*C 
Contribution Assessment.''
---------------------------------------------------------------------------

    In order to develop a final set of contribution estimates, MANE-VU 
weighted the results from both the Q/d and CALPUFF analyses. The MANE-
VU mass-weighted sulfate and nitrate contribution results were reported 
for the MANE-VU Class I areas (the Q/d summary report included results 
for

[[Page 20396]]

several non-MANE-VU areas as well). If a state's contribution to 
sulfate and nitrate concentrations at a particular Class I area was 2 
percent or greater, MANE-VU regarded the state as contributing to 
visibility impairment in the area. According to MANE-VU's analyses, 
sources in New York have been found to contribute to visibility 
impairment in downwind mandatory Class I areas. These mandatory Class I 
areas are: Lye Brook Wilderness Area, Vermont; Brigantine Wildlife 
Refuge, New Jersey; Presidential Range-Dry River Wilderness Area and 
Great Gulf Wilderness Area, New Hampshire; Roosevelt-Campobello 
International Park, Acadia National Park and Moosehorn Wildlife Refuge, 
Maine; Dolly Sods Wilderness Area and Otter Creek Wilderness Area, West 
Virginia; and Shenandoah National Park, Virginia. The largest New York 
mass-weighted sulfate and nitrate contribution to any Class I area was 
10.0% to Lye Brook Wilderness.\46\ Thus, New York concludes in its 
regional haze submission, that it does contribute to visibility 
impairment in Class I Federal areas, and that its contributions ``while 
important, are not the most significant, with the contributions of 
several states [Midwest RPO and VISTAS] outside the MANE-VU region 
being significantly larger than New York's.'' \47\
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    \46\ See Pennsylvania's contribution of 20.0% in Table 10-1, 
``Percent Mass-Weighted Sulfate and Nitrate Due to Emissions from 
Listed States,'' of the NY RH 2nd Implementation Period SIP 
submittal.
    \47\ See Section 10.2.2 of the NY RH 2nd Implementation Period 
SIP submittal and Appendix C: ``Selection of States for MANE-VU 
Regional Haze Consultation (2018).''
---------------------------------------------------------------------------

    As explained above, the EPA concluded in the 1999 RHR that ``all 
[s]tates contain sources whose emissions are reasonably anticipated to 
contribute to regional haze in a Class I area,'' (64 FR 35721, July 1, 
1999), and this determination was not changed in the 2017 RHR. 
Critically, the statute and regulation both require that the cause-or-
contribute assessment consider all emissions of visibility-impairing 
pollutants from a state, as opposed to emissions of a particular 
pollutant or emissions from a certain set of sources. Consistent with 
these requirements, the 2019 Guidance makes it clear that ``all types 
of anthropogenic sources are to be included in the determination'' of 
whether a state's emissions are reasonably anticipated to result in any 
visibility impairment. 2019 Guidance at 8.
    The EPA notes that the screening analyses on which MANE-VU relied 
are useful for certain purposes. MANE-VU used information from its 
technical analysis to rank the largest contributing states to sulfate 
and nitrate impairment in five Class I areas within MANE-VU states and 
three additional, nearby Class I areas.\48\ The rankings were used to 
determine upwind states that were deemed important to include in state-
to-state consultation (based on an identified impact screening 
threshold). Additionally, large individual source impacts were used to 
address specific components of MANE-VU's control analysis ``Asks'' \49\ 
of states and sources within and upwind of MANE-VU.\50\ The EPA finds 
the nature of the analyses generally appropriate to support decisions 
on states with which to consult. However, we have cautioned that source 
selection methodologies that target the largest regional contributors 
to visibility impairment across multiple states may not be reasonable 
for a particular state if it results in few or no sources being 
selected. 2021 Clarifications Memo at 3.
---------------------------------------------------------------------------

    \48\ The Class I areas analyzed were Acadia National Park in 
Maine, Brigantine Wilderness in New Jersey, Great Gulf Wilderness in 
New Hampshire, Lye Brook Wilderness in Vermont, Moosehorn Wilderness 
in Maine, Shenandoah National Park in Virginia, James River Face 
Wilderness in Virginia, and Dolly Sods/Otter Creek Wildernesses in 
West Virginia.
    \49\ As explained more fully in Section IV.E.a, MANE-VU refers 
to each of the components of its overall strategy as an ``Ask ``of 
its member states.
    \50\ The MANE-VU consultation report (Appendix E of the NY RH 
2nd Implementation Period SIP submission) explains that ``[t]he 
objective of this technical work was to identify states and sources 
from which MANE-VU will pursue further analysis. This screening was 
intended to identify which states to invite to consultation, not a 
definitive list of which states are contributing.''
---------------------------------------------------------------------------

    Further, the EPA reviewed the adequacy of MANE-VU's analysis and 
determinations regarding New York's contribution to visibility 
impairment at out-of-state Class I areas. The MANE-VU technical work 
focuses on the magnitude of visibility impacts from certain New York 
emissions on nearby Class I areas. However, the analyses did not 
account for all emissions and all components of visibility impairment 
(e.g., primary PM emissions, and impairment from fine PM, elemental 
carbon, and organic carbon). In addition, Q/d analyses with a 
relatively simplistic accounting for wind trajectories and CALPUFF 
applied to a very limited set of EGUs and major industrial sources of 
SO2 and NOX are not scientifically rigorous tools 
capable of evaluating contribution to visibility impairment from all 
emissions in a state. Although New York noted that the contributions 
from several states outside the MANE-VU region are significantly larger 
than its own, we again clarify that each state is obligated under the 
CAA and Regional Haze Rule to address regional haze visibility 
impairment resulting from emissions from within the state, irrespective 
of whether another state's contribution is greater. See 2021 
Clarifications Memo at 3. Additionally, we note that the 2 percent or 
greater sulfate-plus-nitrate threshold used to determine whether New 
York emissions contribute to visibility impairment at a particular 
Class I area may be higher than what EPA believes is an ``extremely low 
triggering threshold'' intended by the statute and regulations. In sum, 
based on the information provided, emissions from New York contribute 
to visibility impairment in Class I areas in Maine, New Jersey, New 
Hampshire, Vermont, Virginia, and West Virginia.\51\ The EPA generally 
agrees with this conclusion. However, due to the low triggering 
threshold implied by the Rule and the lack of rigorous modeling 
analyses, we do not necessarily agree with the level of the State's 2% 
contribution threshold as a general matter.
---------------------------------------------------------------------------

    \51\ See Section 1.4, ``Mandatory Class I Federal Areas Affected 
by New York State'' of the NY RH 2nd Implementation Period SIP 
submission.
---------------------------------------------------------------------------

    Regardless, we note that New York did determine that sources and 
emissions within the State contribute to visibility impairment at out-
of-state Class I areas. Furthermore, New York took part in the emission 
control strategy consultation process as a member of MANE-VU. As part 
of that process, MANE-VU developed a set of emissions reduction 
measures identified as being necessary to make reasonable progress in 
the five MANE-VU Class I areas. MANE-VU refers to each component of its 
overall strategy as an ``Ask'' of participating states. This strategy 
consists of six ``Asks'' for states within MANE-VU, and five Asks for 
states outside the region that were found to impact visibility at Class 
I areas within MANE-VU.\52\ New York's submission discusses each of the 
Asks and explains why or why not each is applicable and how it has 
complied with the relevant components of the emissions control strategy 
MANE-VU has laid out for its states. New York worked with MANE-VU to 
determine potential reasonable measures that could be implemented by 
2028, considering the cost of compliance, the time necessary for 
compliance, the energy and non-air quality

[[Page 20397]]

environmental impacts, and the remaining useful life of any potentially 
affected sources. Although we have concerns regarding some aspects of 
MANE-VU's technical analyses supporting states' contribution 
determinations as a general matter, we propose to find that New York 
has nevertheless satisfied the applicable requirements for making 
reasonable progress towards natural visibility conditions in Class I 
areas that may be affected be emissions from the state.
---------------------------------------------------------------------------

    \52\ See appendix H of the NY RH 2nd Implementation Period SIP 
submission, ``Statement of the Mid-Atlantic/Northeast Visibility 
Union (MANE-VU) Concerning a Course of Action within MANE-VU toward 
Assuring Reasonable Progress for the Second Regional Haze 
Implementation Period (2018-2028), (August 2017).''
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    Specifically, as discussed in further detail below, the EPA is 
proposing to find that New York has submitted a regional haze plan that 
meets the requirements of 40 CFR 51.308(f)(2) related to the 
development of a long-term strategy.

D. Calculations of Baseline, Current, and Natural Visibility 
Conditions; Progress to Date; and the Uniform Rate of Progress

    Section 51.308(f)(1) requires states to determine the following for 
``each mandatory Class I Federal area located within the State'': 
baseline visibility conditions for the most impaired and clearest days, 
natural visibility conditions for the most impaired and clearest days, 
progress to date for the most impaired and clearest days, the 
differences between current visibility conditions and natural 
visibility conditions, and the URP. This section also provides the 
option for states to propose adjustments to the URP line for a Class I 
area to account for impacts from anthropogenic sources outside the 
United States and/or the impacts from wildland prescribed fires that 
were conducted for certain, specified objectives. 40 CFR 
51.308(f)(1)(vi)(B).
    Because New York does not have any Class I areas within its 
borders, it is not required to calculate baseline, current, and natural 
visibility conditions, or to calculate a URP.\53\ Thus, the EPA finds 
that the requirements under this section have been satisfied by New 
York.
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    \53\ While New York noted that it was not required to comply 
with 40 CFR 51.308(f)(1), elsewhere in its SIP submission (See 
section 5) it included visibility metrics of nearby Class I areas, 
which were taken from, ``Mid-Atlantic/Northeast U.S. Visibility Data 
2004-2016 (2nd RH SIP Metrics) (MANE-VU, August 2018).''
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E. Long-Term Strategy for Regional Haze

    Each state having a Class I area within its borders or emissions 
that may affect visibility in a Class I area must develop a long-term 
strategy for making reasonable progress towards the national visibility 
goal. CAA 169A(b)(2)(B). As explained in the Background section of this 
notice, reasonable progress is achieved when all states contributing to 
visibility impairment in a Class I area are implementing the measures 
determined--through application of the four statutory factors to 
sources of visibility impairing pollutants--to be necessary to make 
reasonable progress. 40 CFR 51.308(f)(2)(i). Each state's long-term 
strategy must include the enforceable emission limitations, compliance 
schedules, and other measures that are necessary to make reasonable 
progress. 40 CFR 51.308(f)(2). All new (i.e., additional) measures that 
are the outcome of four-factor analyses are necessary to make 
reasonable progress and must be in the long-term strategy. If the 
outcome of a four-factor analysis is that no new measures are 
reasonable for a source, that source's existing measures are necessary 
to make reasonable progress, and must therefore be included in the SIP, 
unless the state can demonstrate that the source will continue to 
implement those measures and will not increase its emission rate. 
Existing measures that are necessary to make reasonable progress must 
also be in the long-term strategy. In developing its long-term 
strategies, states must also consider the five additional factors in 40 
CFR 51.308(f)(2)(iv). As part of its reasonable progress determination, 
the state must describe the criteria used to determine which sources or 
group of sources were evaluated (i.e., subjected to four-factor 
analysis) for the second implementation period and how the four factors 
were taken into consideration in selecting the emission reduction 
measures for inclusion in the long-term strategy. 40 CFR 
51.308(f)(2)(iii).
    The following subsections summarize how New York's SIP submission 
addressed the requirements of 40 CFR 51.308(f)(2)(i). As explained 
above, New York relied on MANE-VU's technical analyses and framework 
(i.e., the Asks), in addition to their review of sources identified by 
FLMs, to form the basis of its long-term strategy to address reasonable 
progress. Thus, section IV.E.a., ``New York's Response to the Six MANE-
VU Asks,'' describes MANE-VU's development of the six Asks and how New 
York addressed each. Section IV.E.b., ``The EPA's Evaluation of New 
York's Response to the Six MANE-VU Asks and Compliance with 40 CFR 
51.308(f)(2)(i),'' then discusses EPA's evaluation of New York's SIP 
revision with regard to the same.
a. New York's Response to the Six MANE-VU Asks
    States may rely on technical information developed by the RPOs of 
which they are members to select sources for four-factor analysis and 
to conduct that analysis, as well as to satisfy the documentation 
requirements under 40 CFR 51.308(f). Where an RPO has performed source 
selection and/or four-factor analyses (or considered the five 
additional factors in 40 CFR 51.308(f)(2)(iv)) for its member states, 
those states may rely on the RPO's analyses for the purpose of 
satisfying the requirements of 40 CFR 51.308(f)(2)(i) so long as the 
states have a reasonable basis to do so and all state participants in 
the RPO process have approved the technical analyses. 40 CFR 
51.308(f)(3)(iii). States may also satisfy the requirement of 40 CFR 
51.308(f)(2)(ii) to engage in interstate consultation with other states 
that have emissions that are reasonably anticipated to contribute to 
visibility impairment in a given Class I area under the auspices of 
intra- and inter-RPO engagement.
    New York is a member of the MANE-VU RPO and participated in the 
RPO's regional approach to developing a strategy for making reasonable 
progress towards the national visibility goal in the MANE-VU Class I 
areas. MANE-VU's strategy includes a combination of (1) measures for 
certain source sectors and groups of sectors that the RPO determined 
were reasonable for states to pursue, and (2) a request for member 
states to conduct four-factor analyses for individual sources that it 
identified as contributing to visibility impairment. As described 
above, MANE-VU refers to each of the components of its overall strategy 
as an Ask of its member states. On August 25, 2017, the Executive 
Director of MANE-VU, on behalf of the MANE-VU states and Tribal 
nations, signed a statement that identifies six emission reduction 
measures that comprise the Asks for the second implementation 
period.\54\ The Asks were ``designed to identify reasonable emission 
reduction strategies that must be addressed by the states and Tribal 
nations of MANE-VU through their regional haze SIP updates.'' \55\ The 
statement explains that ``[i]f any State cannot agree with or complete 
a Class I

[[Page 20398]]

State's Asks, the State must describe the actions taken to resolve the 
disagreement in the Regional Haze SIP.'' \56\
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    \54\ See appendix H of the NY RH 2nd Implementation Period SIP 
submission, ``Statement of the Mid-Atlantic/Northeast Visibility 
Union (MANE-VU) States Concerning a Course of Action Within MANE-VU 
Toward Assuring Reasonable Progress for the Second Regional Haze 
Implementation Period (2018-2028)'' at 1, August 25, 2017.
    \55\ Id.
    \56\ Id.
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    MANE-VU's recommendations as to the appropriate control measures 
were based on technical analyses documented in the RPO's reports and 
included as appendices to or referenced in New York's regional haze SIP 
submission. One of the initial steps of MANE-VU's technical analysis 
was to determine which visibility-impairing pollutants should be the 
focus of its efforts for the second implementation period. In the first 
implementation period, MANE-VU determined that sulfates were the most 
significant visibility impairing pollutant at the region's Class I 
areas. To determine the impact of certain pollutants on visibility at 
Class I areas for the purpose of second implementation period planning, 
MANE-VU conducted an analysis comparing the pollutant contribution on 
the clearest and most impaired days in the baseline period (2000-2004) 
to the most recent period (2012-2016) \57\ at MANE-VU and nearby Class 
I areas. MANE-VU found that while SO2 emissions were 
decreasing and visibility was improving, sulfates still made up the 
most significant contribution to visibility impairment at MANE-VU and 
nearby Class I areas. According to the analysis, NOX 
emissions have begun to play a more significant role in visibility 
impacts in recent years as SO2 emissions have decreased. The 
technical analyses used by New York are included in their submission to 
the EPA and are as follows:
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    \57\ The period of 2012-2016 was the most recent period for 
which data was available at the time of analysis.
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     2016 Updates to the Assessment of Reasonable Progress for 
Regional Haze in MANE-VU Class I Areas (Appendix M);
     2016 MANE-VU Source Contribution Modeling Report--CALPUFF 
Modeling of Large Electrical Generating Units and Industrial Sources 
April 4, 2017 (Appendix K);
     Regional Haze Metrics Trends and HYSPLIT Trajectory 
Analyses. May 2017. (Appendix L);
     Selection of States for MANE-VU Regional Haze Consultation 
(2018) (MANE-VU Technical Support Committee. September 2017. (Appendix 
C); and
    Furthermore, technical analyses New York's submission also 
references, but New York did not include within its submission, include 
the following documents:
     Technical Support Document for the 2011 Ozone Transport 
Commission/Mid-Atlantic Northeastern Visibility Union Modeling Platform 
(Ozone Transport Commission, September 2018);
     Impact of Wintertime SCR/SNCR Optimization on Visibility 
Impairing Nitrate Precursor Emissions (prepared by the MANE-VU 
Technical Support Committee, November 20, 2017); and
     Technical Memorandum: Four Factor Data Collection 
(prepared by MANE-VU Technical Support Committee March 30, 2017).
    To support development of the Asks, MANE-VU gathered information on 
each of the four factors for six source sectors it determined, based on 
an examination of annual emission inventories, ``had emissions that 
were reasonabl[y] anticipated to contribute to visibility degradation 
in MANE-VU:'' electric generating units (EGUs), industrial/commercial/
institutional boilers (ICI boilers), cement kilns, heating oil, 
residential wood combustion, and outdoor wood combustion.\58\ MANE-VU 
also collected data on individual sources within the EGU, ICI boiler, 
and cement kiln sectors.\59\ Information for the six sectors included 
explanations of technically feasible control options for SO2 
or NOX, illustrative cost-effectiveness estimates for a 
range of model units and control options, sector-wide cost 
considerations, potential time frames for compliance with control 
options, potential energy and non-air-quality environmental impacts of 
certain control options, and how the remaining useful lives of sources 
might be considered in a control analysis.\60\ Source-specific data 
included SO2 emissions \61\ and existing controls \62\ for 
certain existing EGUs, ICI boilers, and cement kilns. MANE-VU 
considered this information on the four factors as well as the analyses 
developed by the RPO's Technical Support Committee when it determined 
specific emission reduction measures that were found to be reasonable 
for certain sources within two of the sectors it had examined--EGUs and 
ICI boilers. The Asks were based on this analysis and looked to either 
optimize the use of existing controls, have states conduct further 
analysis on EGU or ICI boilers with considerable visibility impacts, 
implement low sulfur fuel standards, or lock-in lower emission rates.
---------------------------------------------------------------------------

    \58\ MANE-VU Four Factor Data Collection Memo at 1, March 30, 
2017, available at https://otcair.org/MANEVU/Upload/Publication/Reports/Four-Factor%20Data%20Collection%20Memo%20-%20170314.pdf. The 
six sectors were identified in the first implementation period 
pursuant to MANE-VU's contribution assessment; MANE-VU subsequently 
updated its information on these sectors for the second 
implementation period.
    \59\ See appendix M of the NY RH 2nd Implementation Period SIP 
submission, ``2016 Updates to the Assessment of Reasonable Progress 
for Regional Haze in MANE-VU Class I Areas, Jan. 31, 2016.''
    \60\ Id.
    \61\ Table 1 of MANE-VU's ``Four Factor Data Collection Memo'' 
March 30, 2017 contains 2011 SO2 data from specific 
sources.
    \62\ The ``Status of the Top 167 Electric Generating Units 
(EGUs) that Contributed to Visibility Impairment at MANE-VU Class I 
Areas during the 2008 Regional Haze Planning Period,'' July 25, 
2016, reviews the existing and soon to be installed, at the time of 
the report, emission controls at individual EGU sources that were a 
part of the MANE-VU Ask from the first implementation period. 
Available at: https://otcair.org/MANEVU/Upload/Publication/Reports/Status%20of%20the%20Top%20167%20Stacks%20from%20the%202008%20MANE-VU%20Ask.pdf.
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    MANE-VU Ask 1 is ``ensuring the most effective use of control 
technologies on a year-round basis'' at EGUs with a nameplate capacity 
larger than or equal to 25 megawatts (MW) with already installed 
NOX and/or SO2 controls.\63\ In its submission, 
New York explained that the control limits required by its Reasonably 
Available Control Technology (RACT) rule, SIP-approved 6 NYCRR subpart 
227-2, ``Reasonably Available Control Technology (RACT) for Major 
Facilities of Oxides of Nitrogen (NOX),'' include year-round 
emission limits of NOX for EGUs with a nameplate capacity 
larger than or equal to 25 MW.\64\ Regarding control of SO2 
emissions, under 6 NYCRR subpart 225, ``Fuel Consumption and Use,'' 
which was last approved by the EPA on August 23, 2018 (See 83 FR 
42589), any stationary combustion installation that fires solid or 
liquid fuels is required to meet the sulfur-in-fuel standards of the 
subpart.\65\ Additionally, New York explained that the SIP-approved 6 
NYCRR Part 245, ``CSAPR SO2 Group 1 Trading Program'' (See 
84 FR 38878), will distribute Federal SO2 CSAPR allowances 
to EGUs for the purpose of reducing PM2.5 in New York State 
and downwind states by limiting emissions of SO2 year-round 
from fossil fuel-fired EGUs. Thus, based on the information regarding 
SIP-approved 6 NYCRR Parts 225, 227, and 245, New York explains that 
its operating permits for EGUs, including

[[Page 20399]]

those which are for EGUs with a nameplate capacity larger than or equal 
to 25 MW, require that controls be run year-round for both 
NOX and SO2 by setting emission limits in permits 
that reflect the emission levels when the controls are in operation to 
ensure the most effective use of control technologies. New York 
therefore concluded that it is meeting Ask 1.
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    \63\ See appendix H of the NY RH 2nd Implementation Period SIP 
submission.
    \64\ See NYCRR Part 227-2, ``Reasonably Available Control 
Technology (RACT) for Major Facilities of Oxides of Nitrogen 
(NOX),'' which applies to all EGUs and sets emission 
limits that can only be achieved with year-round operation of 
controls.
    \65\ New York submitted additional revisions to 6 NYCRR 225-1. 
The EPA proposed approval. 87 FR 64428 (October 25, 2022).
---------------------------------------------------------------------------

    MANE-VU Ask 2 consists of a request that states ``perform a four-
factor analysis for reasonable installation or upgrade to emissions 
controls'' for specified sources. MANE-VU developed its Ask 2 list of 
sources for analysis by performing modeling and identifying facilities 
with the potential for 3.0 inverse megameters (Mm-1) or 
greater impacts on visibility at any Class I area in the MANE-VU 
region. Finch Paper and Lafarge Building Materials are the two sources 
in New York State that were identified by Ask 2.
    In section 10.6.3, ``Significant Visibility Impact Emission 
Sources,'' of New York's submittal, an analysis addressing each of the 
four-factors is provided for Finch Paper and Lafarge Building 
Materials. New York's analysis for Finch Paper determined that the 
phased-in switch from No. 6 fuel oil to natural gas in their boilers 
(completed by the end of 2015) and the boiler and combustion tune-ups, 
consistent with 40 CFR part 63 subpart DDDDD Boiler MACT Rule 
(especially for boilers 4 and 5), were adequate upgrades to control 
emissions. Additionally, New York's analysis for Lafarge Building 
Materials determined that major renovations which included the 
replacement of the facility's two wet process kilns with a dry process 
kiln and the installation of a wet scrubber and Selective Non-Catalytic 
Reduction (SNCR) to the kiln system to be adequate upgrades to control 
emissions. Both facilities have undergone major updates since the 2011 
emissions data was collected, which included the implementation of 
emission control strategies, resulting in no additional time necessary 
to comply. Additionally, both facilities have SIP-approved controls 
installed that limit their potential contribution to visibility 
impairment.
    In addition to the analyses conducted for Finch Paper and Lafarge 
Building Materials, New York provided information regarding controls 
and emissions at the facilities within New York that were identified by 
the FLMs during consultation. The following discussion is related to 
information New York provided pertaining to FLM concerns.
    The Anchor Glass Container Corporation facility in Elmira is 
subject to a 2018 Consent Decree with EPA that contains a compliance 
schedule for controls to be implemented on the facility's two furnaces 
(Elmira 1 and Elmira 2). New York indicated that both furnaces will be 
rebuilt and will burn oxyfuel or install a selective catalytic 
reduction (SCR) unit to minimize NOX emissions. These 
controls were implemented for Elmira 1 in 2021. Additionally, a 
scrubber system and an electrostatic precipitator (ESP) were installed 
on Elmira 1 in 2021. Elmira 2 underwent batch optimization in 2021 and 
will burn oxyfuel or install a selective catalytic reduction (SCR) by 
December 31, 2029.
    Moreover, New York indicated that Morton Salt Division converted 
its boilers from firing coal to natural gas. That said, a new natural 
gas 148 MMBtu/hr steam boiler and eight small direct fired building 
heaters replaced an existing 138 MMBtu/hr coal boiler and an existing 
92.5 MMBtu/hr natural gas boiler. According to the State, the new 
natural gas 148 MMBtu/hr steam boiler is subject to the relevant 
presumptive RACT emission limit of 0.06 pounds NOX per 
million Btu burning only natural gas. Notably, this conversion reduced 
emissions below the major source threshold and, as a result, the 
facility's Title V permit was replaced by an Air State Facility 
permit.\66\
---------------------------------------------------------------------------

    \66\ See Air State Facility permit at: https://extapps.dec.ny.gov/data/dar/afs/permits/956320000700045_r0.pdf.
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    The Bowline Point Generating Station switched to natural gas but 
will be allowed to burn oil as a backup. Additionally, Lehigh Northeast 
Cement operates with a dry process, which has fewer emissions than wet 
processes, and a selective noncatalytic reduction (SNCR) began 
operation July 2012. Notably, Northport Power Station burned much less 
#6 high sulfur fuel oil in 2016 and 2017 and, as a result of 6 NYCRR 
225-1, ``Sulfur-in-fuel limitations,'' the sulfur content of #6 fuel 
oil used at the facility has decreased providing for an additional 
reduction of SO2 emissions over the past years.
    Furthermore, New York claims that water injection, dry low 
NOX burners, and SCR are used to control NOX 
emissions, along with the use of an oxidation catalyst to control CO 
and VOC emissions at the Con Edison-East River Generating Station 
facility. At Ravenswood Generating Station, dry low NOX 
burners and SCR are used to control NOX emissions from unit 
U-CC001. In addition, emissions of VOC and CO are controlled using an 
oxidation catalyst and New York only allows distillate oil to be burned 
for 720 hours per year. The Globe Metallurgical, Inc., plant shutdown 
indefinitely due to market conditions in December 2018. Also, the 
Roseton Generating Station exclusively burns natural gas during the 
ozone season and burns natural gas and No. 6 fuel oil during the 
remainder of the year. PM emission from Units 1 & 2 are controlled with 
a mechanical dust collector and NOX emissions are controlled 
with ``Burners Out Of Service'' (BOOS) controls, oil steam atomization, 
and windbox flue gas recirculation at the Roseton facility.
    Moreover, Cargill Salt Co.'s Watkins Glen Plant shutdown four 
boilers (two coal-fired and two natural gas-fired) in 2013, totaling 
228 MMBtu/hr heat input capacity. The four boilers that were shutdown 
were replaced by one 181 MMBtu/hr natural gas-fired boiler, equipped 
with a low-NOX burner. The replacement boiler is subject to 
a 0.1 lbs NOX/MMBtu heat input limit that is monitored using 
a Continuous Emissions Monitoring System (CEMS), and as a result of 
these changes, the plant is no longer considered a major facility 
subject to a Title V permit. Norlite Corporation has had its permit 
emission limits reduced from 61 lb/hr of NOX and 30 lb/hr of 
SO2 in 2011, to 22.4 lb/hr of NOX and 28 lb/hr of 
SO2. As a result, NOX and SO2 
emissions at Norlite decreased from 80.7 tons in 2011 to 78.8 tons in 
2017 and 124.9 tons in 2011 to 60.4 tons in 2017 respectively. New York 
therefore concluded that it satisfies Ask 2.
    Ask 3 is for each MANE-VU state to pursue an ultra low-sulfur fuel 
oil standard if it has not already done so in the first implementation 
period.\67\ The Ask includes percent by weight standards for #2 
distillate oil (0.0015% sulfur by weight or 15 ppm), #4 residual oil 
(0.25-0.5% sulfur by weight), and #6 residual oil (0.3-0.5% sulfur by 
weight). New York explains that it has already implemented a low-sulfur 
fuel standard and does not need to take further action by 2028. In 
2018, the EPA approved into the New York SIP New York's regulation to 
reduce the sulfur content of fuel oil, 6 NYCRR 225-1. 83 FR 42589 (Aug. 
23, 2018). The final rule limited firing of all residual oil to a range 
of 0.3 to 0.5% sulfur by weight depending on the area and a 15 ppm 
limit (0.0015% sulfur by weight) on #2 oil starting July 1, 2014. The 
ultra low-sulfur fuel oil regulations in New York are a part of its

[[Page 20400]]

long-term strategy. New York therefore concluded that it is meeting Ask 
3.
---------------------------------------------------------------------------

    \67\ MANE-VU's analysis, which New York relied on, is found in 
``Appendix M-2016 Updates to the Assessment of Reasonable Progress 
for Regional Haze in MANE-VU Class I Areas.''
---------------------------------------------------------------------------

    MANE-VU Ask 4 requests states to update permits to ``lock in'' 
lower emissions rates for NOX, SO2, and PM at 
emissions sources larger than 250 million British Thermal Units (MMBtu) 
per hour heat input that have switched to lower emitting fuels. 
According to New York's SIP submission, New York updates permits for 
large point emission sources every five years for Title V facilities, 
every ten years for Air State Facilities, and whenever both Title V and 
Air State facilities make a major update. New York explains that it 
will also require the use of lower emitting fuel in the permits when 
these permits are updated. Additionally, New York's submittal indicates 
that it has adopted 6 NYCRR part 251, ``CO2 Performance Standards for 
Major Electric Generating Facilities,'' which requires all power plants 
in New York to meet new emissions limits for carbon dioxide 
(CO2) and will end the use of coal in New York State power 
plants. Although this state regulation has not been submitted to the 
EPA for incorporation into New York's SIP, it is expected that 
emissions of visibility impairing pollutants will decrease once power 
plants cease the burning of coal. In addition, New York has stringent 
SIP-approved limits for coal operated units in its 6 NYCRR subpart 227-
2, ``RACT for Major Facilities of NOX provisions.'' This 
rule limits presumptive NOX emission limits to the range of 
0.08 to 0.20 pounds per million BTU (lb/MMBtu), depending upon the type 
of fuel and boiler configuration, for sources with emissions larger 
than 250 million British Thermal Units (MMBtu) per hour heat input. New 
York therefore concluded it is meeting Ask 4.
    Ask 5 requests that states ``control NOX emissions for 
peaking combustion turbines \68\ that have the potential to operate on 
high electric demand days'' by either (1) meeting NOX 
emissions standards specified in the Ask for turbines that run on 
natural gas and for fuel oil, (2) performing a four-factor analysis for 
reasonable installation of or upgrade to emission controls, or (3) 
obtaining equivalent emission reductions on high electric demand 
days.\69\ The Ask requests states to strive for NOX emission 
standards of no greater than 25 ppm for natural gas and 42 ppm for fuel 
oil, or at a minimum, NOX emission standards of no greater 
than 42 ppm for natural gas and 96 ppm for fuel oil. New York's 
submission states that it adopted 6 NYCRR subpart Part 227-3 \70\ on 
December 11, 2019, to, among other things, limit emissions from simple 
cycle combustion turbines (peaking units) that operate on high electric 
demand days.\71\ The rule limits NOX emission rates to 25 
ppm at 15% O2 for natural gas and 42 ppm at 15% 
O2 for fuel oil. This rule helps to achieve ground-level 
ozone reductions and, as a result, is expected to improve visibility in 
mandatory Class I Federal areas in response to the Ask.\72\ In 2021, 
the EPA approved into the New York SIP, New York's regulation (6 NYCRR 
227-3) to limit emissions from simple cycle combustion turbines 
(peaking units) that operate on high electric demand days. 86 FR 43956 
(Aug. 11, 2021). New York therefore concluded it is meeting Ask 5.
---------------------------------------------------------------------------

    \68\ Peaking combustion turbine is defined for the purpose of 
this Ask as a turbine capable of generating 15 megawatts or more, 
that commenced operation prior to May 1, 2007, is used to generate 
electricity all or part of which is delivered to electric power 
distribution grid for commercial sale and that operated less than or 
equal to an average of 1,752 hours (or 20%) per year during 2014 to 
2016.
    \69\ See appendix H of the NY RH 2nd Implementation Period SIP 
submission.
    \70\ New York submitted 6 NYCRR Subpart 227-3, ``Ozone Season 
Oxides of Nitrogen (NOX) Emission Limits for Simple Cycle 
and Regenerative Combustion Turbines'' to the EPA on May 18, 2020.
    \71\ High electric demand days are days when higher than usual 
electrical demands bring additional generation units online, many of 
which are infrequently operated and may have significantly higher 
emissions rates of the generation fleet.
    \72\ See section 10.6.6 of the NY RH 2nd Implementation Period 
SIP submission.
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    The last Ask for states within MANE-VU, Ask 6, requests states to 
report in their regional haze SIPs about programs that decrease energy 
demand and increase the use of combined heat and power (CHP) and other 
distributed generation technologies such as fuel cells, wind and solar. 
New York explains in its SIP submission that it ``is a leader in 
adopting energy efficiency and renewable energy programs and is always 
investigating additional programs that will decrease use of fossil 
fuels in energy generation.'' \73\ Section 10.3.7 of its SIP submission 
specifically cites the New York State Energy Research and Development 
Authority (NYSERDA) which provides funding and technical assistance in 
many programs that result in reductions of emissions of PM and its 
precursors as well as New York's Department of Public Service that also 
has current energy programs. New York therefore concluded it is meeting 
Ask 6.
---------------------------------------------------------------------------

    \73\ See section 10.6.7 of the NY RH 2nd Implementation Period 
SIP submission.
---------------------------------------------------------------------------

b. The EPA's Evaluation of New York's Response to the Six MANE-VU Asks 
and Compliance With 40 CFR 51.308(f)(2)(i)
    The EPA is proposing to find that New York has satisfied the 
requirements of 40 CFR 51.308(f)(2)(i) related to evaluating sources 
and determining the emission reduction measures that are necessary to 
make reasonable progress by considering the four statutory factors. We 
are proposing to find that New York has satisfied the four-factor 
analysis requirement through its analysis and actions to address the 
MANE-VU Asks.
    As explained above, New York relied on MANE-VU's technical analysis 
and framework (i.e., the Asks), in addition to their review of sources 
identified by FLMs, to select sources and form the basis of its long-
term strategy. MANE-VU conducted an inventory analysis to identify the 
source sectors that produced the greatest amount of SO2 and 
NOX emissions in 2011 and inventory data were also projected 
to 2018. Based on this analysis, MANE-VU identified the top-emitting 
sectors for each of the two pollutants, which for SO2 
include coal-fired EGUs, industrial boilers, oil-fired EGUs, and oil-
fired area sources including residential, commercial, and industrial 
sources. Additionally, major-emitting sources of NOX include 
on-road vehicles, non-road vehicles, and EGUs.\74\ The RPO's 
documentation explains that ``[EGUs] emitting SO2 and 
NOX and industrial point sources emitting SO2 
were found to be sectors with high emissions that warranted further 
scrutiny. Mobile sources were not considered in this analysis because 
any ask concerning mobile sources would be made to EPA and not during 
the intra-RPO and inter-RPO consultation process among the states and 
tribes.'' \75\ The EPA proposes to find that New York reasonably 
evaluated the two pollutants, SO2 and NOX, that 
currently drive visibility impairment within the MANE-VU region and 
that it adequately explained and supported its decision to focus on 
these two pollutants through its reliance on the MANE-VU technical 
analyses cited in its submission.
---------------------------------------------------------------------------

    \74\ See appendix G of NY RH 2nd Implementation Period SIP 
submission, ``Contribution Assessment Preliminary Inventory 
Analysis'' (Oct. 10, 2016).
    \75\ See docket document ``Statement of MANE-VU Concerning a 
Course of Action by Federal Agencies for the 2nd pp.''
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    Section 51.308(f)(2)(i) requires states to evaluate and determine 
the emission reduction measures that are necessary to make reasonable 
progress by applying the four statutory factors to sources in a control 
analysis. As explained

[[Page 20401]]

previously, the MANE-VU Asks are a mix of measures for sectors and 
groups of sources identified as reasonable for states to address in 
their regional haze plans. While MANE-VU formulated the Asks to be 
``reasonable emission reduction strategies'' to control emissions of 
visibility impairing pollutants,\76\ the EPA believes that Asks 2 and 
3, in particular, engage with the requirement that states determine the 
emission reduction measures that are necessary to make reasonable 
progress through consideration of the four factors. As laid out in 
further detail below, the EPA is proposing to find that MANE-VU's four-
factor analysis conducted to support the emission reduction measures in 
Ask 3 (ultra-low sulfur fuel oil Ask), in conjunction with New York's 
supplemental analysis and explanation of how it has complied with Ask 2 
(perform four-factor analyses for sources with potential for >=3 
Mm-1 impacts) satisfy the requirement of 40 CFR 
51.308(f)(2)(i). The emission reduction measures that are necessary to 
make reasonable progress must be included in the long-term strategy, 
i.e., in New York's SIP. See 40 CFR 51.308(f)(2)(i).
---------------------------------------------------------------------------

    \76\ See Appendix H of NY RH 2nd Implementation Period SIP 
submission, ``Statement of MANEVU Concerning a Course of Action 
Within MANEVU Toward Assuring Reasonable Progress for the Second 
Implementation.''
---------------------------------------------------------------------------

    As for Ask 1, New York concluded that it satisfied the ask because 
its SIP-approved regulations include year-round emission limits for 
EGUs with a nameplate capacity larger than or equal to 25 MW and 
because it already requires that controls be run year-round for both 
NOX and SO2 by setting emission limits in permits 
that reflect the emission levels when the controls are run. New York 
also explains in its response to public comments that it has very 
stringent sulfur in fuel regulations and that there are no coal units 
remaining in New York. New York's SIP approved (78 FR 41846, July 12, 
2013) Reasonably Available Control Technology (RACT) for Major 
Facilities of Oxides of Nitrogen (NOX), limits emissions 
from boilers, combustion turbines, stationary internal combustion 
engines, and other combustion installations through the requirement of 
year-round controls. The New York RACT rule includes maximum 
NOX emission limits of 0.2 pounds NOX per million 
Btu for coal fuel types, 0.2 pounds NOX per million Btu for 
gas/oil fuel types and 0.08 pounds NOX per million Btu for 
gas only fuel types. Furthermore, New York's SIP-approved sulfur limits 
(6 NYCRR 225-1) include year-round limits. 83 FR 42589 (Aug. 23, 
2018).\77\ The final rule limited firing of all residual oil to a range 
of 0.3 to 0.5% sulfur by weight depending on the area and a 15 ppm 
limit (0.0015% sulfur by weight) on #2 oil. New York's SIP-approved 
SO2 and NOX RACT requirements in 6 NYCRR subpart 
225-1 and 227-2 limit SO2 and NOX emissions from 
EGUs with a nameplate capacity larger than or equal to 25 MW consistent 
with the year-round operation of control technologies. Thus, the EPA 
proposes to find that New York reasonably concluded that it has 
satisfied Ask 1.
---------------------------------------------------------------------------

    \77\ New York revised 6 NYCRR 225 and submitted such revisions 
to the EPA for approval into the SIP on August 28, 2020 and March 3, 
2021. The EPA proposed approval on October 25, 2022. See 87 FR 
66428.
---------------------------------------------------------------------------

    Ask 2 addresses the sources MANE-VU determined to have the 
potential for larger than, or equal to, 3 Mm-1 visibility 
impact at any MANE-VU Class I area; the Ask requests MANE-VU states to 
conduct four-factor analyses for the specified sources within their 
borders. This Ask explicitly engages with the statutory and regulatory 
requirement to determine reasonable progress based on the four factors; 
MANE-VU considered it ``reasonable to have the greatest contributors to 
visibility impairment conduct a four-factor analysis that would 
determine whether emission control measures should be pursued and what 
would be reasonable for each source.'' \78\
---------------------------------------------------------------------------

    \78\ See Appendix E of NY RH 2nd Implementation Period SIP 
submission, ``MANE-VU Regional Haze Consultation Report.''
---------------------------------------------------------------------------

    As discussed above, EPA does not necessarily agree that the 3.0 
Mm-1 visibility impact is a reasonable threshold for source 
selection. The RHR recognizes that, due to the nature of regional haze 
visibility impairment, numerous and sometimes relatively small sources 
may need to be selected and evaluated for control measures in order to 
make reasonable progress. See 2021 Clarifications Memo at 4. As 
explained in the 2021 Clarifications Memo, while states have discretion 
to choose any source selection threshold that is reasonable, ``[a] 
state that relies on a visibility (or proxy for visibility impact) 
threshold to select sources for four-factor analysis should set the 
threshold at a level that captures a meaningful portion of the state's 
total contribution to visibility impairment to Class I areas.'' 2021 
Memo at 3. In this case, the 3.0 Mm-1 threshold identified 
two sources in New York (and only 22 across the entire MANE-VU region), 
indicating that it may be unreasonably high. However, as explained in 
more detail below, we propose to find that New York's additional 
information and explanation indicates that the State in fact examined a 
reasonable set of sources and reasonably concluded that four-factor 
analyses for additional sources are not necessary because the outcome 
would be that no further emission reductions would be reasonable.
    MANE-VU identified two large EGUs or other industrial sources of 
visibility impairing pollutants within New York, Finch Paper and 
Lafarge Building Materials. As detailed in New York's submission, the 
EPA notes that both facilities have undergone updates since the 2011 
emissions data was collected and have installed SIP-approved controls 
that limit their potential maximum light extinction impact below 3.0 
(Mm-1) and well below their previous levels.
    In section 10.6.3 of New York's submittal, New York addresses each 
of the four-factors for the controls that were implemented at Finch 
Paper after the 2011 emissions data was collected. New York also 
submitted a Source-Specific State Implementation Plan Revision (SSSR) 
for Finch Paper to the EPA on May 18, 2022.\79\ The EPA proposed to 
approve the SSSR on January 19, 2024. See 89 FR 3620. Appendix A \80\ 
of the SSSR contains Finch's technical evaluation of the currently 
permitted Reasonably Available Control Technology (RACT) for 
NOX as well as NOX RACT analysis dated 2019.
---------------------------------------------------------------------------

    \79\ See docket document ``Finch Source Specific State 
Implementation Plan Revision.''
    \80\ See docket document ``COMPLETE 
SSSR.2022MAY18.Finch.2EPA20220524.pdf.''
---------------------------------------------------------------------------

    Finch's 2019 RACT analysis determined that six technologies were 
technically feasible for the power boilers. Those technologies include 
decommissioning/idling sources, fuel switch excusive to natural gas, 
third generation Low NOX burners, Selective Catalytic 
Reduction (SCR), and purchasing electricity in lieu of generating it 
onsite. Finch then performed a cost analysis for third generation low 
NOX burners, SCR, and purchasing electricity since it had 
already implemented the other identified control technologies. Finch's 
cost analysis of low NOX burner resulted in a cost of $6,998 
per ton NOX removed and was considered economically 
infeasible. Finch's analysis of SCR resulted in a cost of $15,358 per 
ton NOX removed and was considered economically infeasible. 
Finch's cost analysis of purchasing electricity instead of generating

[[Page 20402]]

electricity onsite with No.4 boiler and No.5 boiler being capped, 
resulted in a cost of $5,774 per ton NOX removed and was not 
considered a reasonable available control technology.
    Appendix A of New York's SSSR submission \81\ also includes Finch's 
reevaluation of the 2019 NOX RACT analysis requirements 
(``2021 RACT analysis''), as part of the facility's Title V Operating 
Permit renewal application. In the 2021 RACT analysis, Finch compared 
the actual emission rates to established emission limits for each 
source type. For the Power Boilers, the calculated 30-day averages are 
within approximately 2-9% of the established limits for the power 
boilers. The emission testing results for the No.9 Wood Waste Boiler 
showed that the emissions are within approximately 10% of the 
established RACT limit. The Recovery Boilers emission limit was also 
evaluated, and Finch found that the actual emissions were within 4-19% 
of the established limits. Based on the 2021 RACT analysis, Finch 
determined that they are demonstrating ongoing compliance with the 
emission limits within a reasonable margin and proposed to retain the 
current NOX emission limits as RACT.
---------------------------------------------------------------------------

    \81\ Id.
---------------------------------------------------------------------------

    As noted in the May 18, 2022 SSSR, Finch controls NOX 
emissions from the site through the following means:
     Eliminated use of Boiler No. 1; Completed in 2015.
     A time-phased elimination of No. 6 fuel oil on all boilers 
since NOX emissions are higher from the combustion of fuel 
oil than natural gas; Completed on December 31, 2015.
     Performance of boiler and combustion tune-ups consistent 
with 40 CFR part 63 subpart DDDDD, the Boiler MACT Rule; Completed the 
first tune-up in January 2016.
     A ``seasonal'' NOX RACT emission limit for 
Boilers No. 2 through No. 5 as follows:
    [cir] From April 15 to October 15, a NOX emission limit 
of 0.225 lbs NOX/MMBtu measured on a daily basis and 
reported as a 30-day average; \82\
---------------------------------------------------------------------------

    \82\ See docket document ``Finch Air Title V Permit.''
---------------------------------------------------------------------------

    [cir] From October 16 to April 14, an operating limit .275 pounds 
per million BTU on a 30-day average. The limit will not apply when the 
recovery boiler is not burning liquor or No. 9 is considered down. On 
those days the limit will be 0.378 pounds per million BTU on a 24-hour 
block average.\83\
---------------------------------------------------------------------------

    \83\ Id.
---------------------------------------------------------------------------

    According to the 2011 NEI data, Finch emitted 1,828.7 tons of 
NOX and 309.6 tons of SO2. Since then, Finch has 
implemented emission controls, as detailed in section 10.6.3 of New 
York's submittal, and consequently reduced its emissions. New York also 
provided a supplement which lists the controls at Finch Paper for 
SO2, PM, and NOX for the primary units at the 
facility.\84\ In addition to the NOX controls listed above, 
the facility controls SO2 with a wet scrubber, the use of 
low-sulfur fuel, and packed bed tower, gas scrubber.\85\ As a result, 
in 2020, Finch emitted 1,324.3 tons of NOX and 138.9 tons of 
SO2.\86\
---------------------------------------------------------------------------

    \84\ See docket document ``FLM List Facility Controls.''
    \85\ See docket document ``Finch Air Title V permit.''
    \86\ See docket document ``FLM List Recent Emissions.''
---------------------------------------------------------------------------

    In the first planning period, NYSDEC determined that the existing 
long wet kilns at Lafarge Building Materials Inc., were BART eligible. 
In January 2010, Lafarge entered a Consent Decree with the EPA \87\ 
which contained a compliance schedule for the plant to either modernize 
the existing plant, retrofit the existing kilns with controls, or 
retire the kilns. Furthermore, Lafarge Building Materials underwent 
major renovations since the emission data was collected for the 
analysis, replacing its two wet process kilns with a dry process kiln. 
A wet scrubber was installed to control SO2, as well as 
mercury, and a SNCR was installed to control NOX from the 
kiln system.\88\ With the controls started on May 16, 2017 for 
SO2, mercury, and NOX, Lafarge now meets the NSPS 
limits in 40 CFR part 60 subpart F. In section 10.6.3 of New York's 
submittal, New York addresses each of the four-factors for the controls 
that had been implemented at Lafarge after the 2011 emissions data was 
collected.
---------------------------------------------------------------------------

    \87\ On January 21, 2010, EPA announced that the U.S. filed 
Clean Air Act settlements to reduce air emissions from container 
glass and Portland cement plants throughout the country. (Case 3:10-
cv-000440JPG-CJP) This settlement includes Portland cement plants 
owned by Lafarge Company, including one located at Ravena, NY that 
has two wet kilns that New York has identified as BART-eligible.
    \88\ See docket document ``FLM List Facility Controls.''
---------------------------------------------------------------------------

    According to the 2011 NEI data, Lafarge Building Materials emitted 
4,926.5 tons of NOX and 9,570 tons of SO2. Since 
then, Lafarge has implemented SIP-approved emission controls, as 
detailed in section 10.6.3 of New York's submittal, and consequently 
reduced its emissions. New York also provided a supplement which lists 
the controls at Lafarge for SO2, PM, and NOX for 
the primary units at the facility.\89\ As a result, in 2020, Lafarge 
emitted 558.6 tons of NOX and 58.7 tons of 
SO2.\90\
---------------------------------------------------------------------------

    \89\ See docket document ``FLM List Facility Controls.''
    \90\ See docket document ``FLM List Recent Emissions.''
---------------------------------------------------------------------------

    The EPA therefore proposes to find that New York reasonably 
determined it has satisfied Ask 2. As explained above, we do not 
necessarily agree that a 3.0 Mm-1 threshold for selecting 
sources for four-factor analysis results in a set of sources the 
evaluation of which has the potential to meaningfully reduce the 
State's contribution to visibility impairment. MANE-VU's threshold 
identified only two sources in New York for four-factor analysis. 
However, in this particular case we propose to find that New York's 
additional information and explanation indicates that the State in fact 
examined a reasonable set of sources and reasonably concluded that 
four-factor analyses for these sources are not necessary because the 
outcome would be that no further emission reductions would be 
reasonable. EPA is basing this proposed finding on the State's 
examination of the two sources, the current emissions from and controls 
that apply to the facilities, controls in place at sources flagged by 
the FLMs, as well as New York's existing SIP-approved rules that 
control NOX emissions.
    Ask 3, which addresses the sulfur content of heating oil used in 
MANE-VU states, is based on a four-factor analysis that MANE-VU 
conducted regarding the heating oil sulfur reduction regulations 
contained in that Ask; specifically, for the control strategy of 
reducing the sulfur content of distillate oil to 15 ppm. The analysis 
started with an assessment of the costs of retrofitting refineries to 
produce 15 ppm heating oil in sufficient quantities to support 
implementation of the standard, as well as the impacts of requiring a 
reduction in sulfur content on consumer prices. The analysis noted 
that, as a result of previous EPA rulemakings to reduce the sulfur 
content of on-road and non-road-fuels to 15 ppm, technologies are 
currently available to achieve sulfur reductions and many refiners are 
already meeting this standard, meaning that the capital investments for 
further reductions in the sulfur content of heating oil are expected to 
be relatively low compared to costs incurred in the past. The analysis 
also examined, by way of example, the impacts of New York's existing 15 
ppm sulfur requirements on heating oil prices and concluded that the 
cost associated with reducing sulfur

[[Page 20403]]

was relatively small in terms of the absolute price of heating oil 
compared to the magnitude of volatility in crude oil prices. It also 
noted that the slight price premium is compensated by cost savings due 
to the benefits of lower-sulfur fuels in terms of equipment life and 
maintenance and fuel stability. Consideration of the time necessary for 
compliance with a 15 ppm sulfur standard was accomplished through a 
discussion of the amount of time refiners had needed to comply with the 
EPA's on-road and non-road fuel 15 ppm requirement, and the 
implications existing refinery capacity and distribution infrastructure 
may have for compliance times with a 15 ppm heating oil standard. The 
analysis concluded that with phased-in timing for states that have not 
yet adopted a 15 ppm heating oil standard, there ``appears to be 
sufficient time to allow refiners to add any additional heating oil 
capacity that may be required.'' \91\ The analysis further noted the 
beneficial energy and non-air quality environmental impacts of a 15 ppm 
sulfur heating oil requirement and that reducing sulfur content may 
also have a salutary impact on the remaining useful life of residential 
furnaces and boilers.\92\
---------------------------------------------------------------------------

    \91\ Id. at 8-7.
    \92\ Id. at 8-8.
---------------------------------------------------------------------------

    The EPA proposes to find that New York reasonably relied on MANE-
VU's four-factor analysis for a low-sulfur fuel oil regulation, which 
engaged with each of the factors and explained how the information 
supported a conclusion that a 15 ppm-sulfur fuel oil standard for fuel 
oils is reasonable. New York's SIP-approved ultra-low sulfur fuel oil 
rule \93\ is consistent with Ask 3's sulfur content standards for the 
three types of fuel oils (distillate oil, #4 residual oil, #6 residual 
oil). EPA therefore proposes to find that New York reasonably 
determined that it has satisfied Ask 3.
---------------------------------------------------------------------------

    \93\ 6 NYCRR subpart 225-1: Fuel Composition and Use- Sulfur 
Limitations was approved into New York's SIP by the EPA on August 
23, 2018. (83 FR 42589)
---------------------------------------------------------------------------

    New York concluded that no additional updates were needed to meet 
Ask 4, which requests MANE-VU states to pursue updating permits, 
enforceable agreements, and/or rules to lock-in lower emission rates 
for sources larger than 250 MMBtu per hour that have switched to lower 
emitting fuels. As previously explained, New York updates permits for 
large point sources every five years for Title V facilities, every ten 
years for Air State Facilities, and when Title V and Air State 
facilities make a major update. Under section 10.6.5. of its 
submission, New York indicated it would require the use of lower 
emitting fuel in such permits as they are updated. New York has also 
adopted NYCRR Part 251 which requires all power plants in New York to 
meet new emission limits for carbon dioxide.\94\ This regulation, in 
addition to the SIP enforced NOX limits in 6 NYCRR subpart 
227-2, Reasonably Available Control Technology (RACT) for Major 
Facilities of Oxides of Nitrogen (NOX), satisfy Ask 4. Thus, 
the EPA proposes to find that New York reasonably determined it has 
satisfied Ask 4.
---------------------------------------------------------------------------

    \94\ See section 10.6.5 of the NY RH 2nd Implementation Period 
SIP submission.
---------------------------------------------------------------------------

    Ask 5 addresses NOX emissions from peaking combustion 
turbines that have the potential to operate on high electric demand 
days. New York explains that it adopted NYCRR subpart 227-3, ``Ozone 
Season Oxides of Nitrogen (NOX) Emission Limits for Simple 
Cycle and Regenerative Combustion Turbines,'' on December 11, 2019 that 
limits emissions from peaking combustion turbines \95\ that operate on 
high electric demand days \96\ and meets the emission rates contained 
in Ask 5. New York submitted Part 227-3 to the EPA on May 18, 2020 and 
it was approved on August 11, 2021. (86 FR 43956) The EPA therefore 
proposes to find that New York reasonably concluded that its existing 
regulations comply with Ask 5.
---------------------------------------------------------------------------

    \95\ Peaking combustion turbine is defined for the purpose of 
this Ask as a turbine capable of generating 15 megawatts or more, 
that commenced operation prior to May 1, 2007, is used to generate 
electricity all or part of which is delivered to electric power 
distribution grid for commercial sale and that operated less than or 
equal to an average of 1,752 hours (or 20%) per year during 2014 to 
2016.
    \96\ High electric demand days are days when higher than usual 
electrical demands bring additional generation units online, many of 
which are infrequently operated and may have significantly higher 
emissions rates of the generation fleet.
---------------------------------------------------------------------------

    Finally, the EPA is proposing to find that New York has satisfied 
Ask 6's request to consider and report in its SIP measures or programs 
related to energy efficiency, cogeneration, and other clean distributed 
generation technologies. New York reports it is a leader in adopting 
energy efficiency and renewable energy programs and is always 
investigating additional programs that will decrease use of fossil 
fuels in energy generation. In the additional measures section of its 
submittal, section 10.3.7, New York explains that in July 2019, it 
passed the Climate Leadership and Community Protection Act (CLCPA). The 
CLCPA requires New York to achieve a carbon free electric system by 
2040 and reduce greenhouse gas emissions 85% below 1990 levels by 2050, 
to expedite the transition to a clean energy economy. This law will 
drive investment in clean energy solutions such as wind, solar, energy 
efficiency and energy storage. The CLCPA targets investments to benefit 
disadvantaged communities, create tens of thousands of new jobs, 
improve public health and quality of life, and provide all New Yorkers 
with more robust clean energy choices. Additionally, with a focus on 
environmental justice, state agencies will invest at least 35% of clean 
energy program resources to benefit disadvantaged communities but will 
aim for a 40% investment. In addition, NYSDEC will, through the future 
adoption of regulations, drive an 85% reduction in greenhouse gas 
emissions by 2050, with an interim benchmark of 40% reduction in 
emissions by 2030 (both relative to 1990 levels). The Climate Action 
Council will develop a plan to offset remaining emissions through 
carbon capture or other technologies to create a carbon-neutral 
economy. Finally, a just transition working group will work to ensure 
that individuals working in conventional energy industries are provided 
with training and opportunities in the growing clean energy economy.
    In sum, the EPA is proposing to find that, based on New York's 
participation in the MANE-VU planning process, how it has addressed 
each of the Asks, its initial submission and supplemental information 
regarding sources and emissions, and the EPA's assessment of New York's 
emissions and point sources, New York has complied with the 
requirements of 40 CFR 51.308(f)(2)(i). Specifically, MANE-VU Asks 2 
and 3 engage with the requirement that states evaluate and determine 
that emission reduction measures that are necessary to make reasonable 
progress by considering the four statutory factors. MANE-VU selected 
two sources for New York to perform source-specific four-factor 
analyses pursuant to Ask 2. EPA is proposing to find that the state's 
approach is reasonable because the sources with the greatest modeled 
impacts on visibility have reduced their emissions or are subject to 
stringent control measures. New York's SIP-approved control measures, 
emissions inventory and supplemental information demonstrate that the 
sources of SO2 and NOX within the State that 
would be expected to contribute to visibility impartment have small 
emissions of NOX and SO2, are well controlled, or 
both. New York's SIP-approved sulfur limitations and use regulation 
limit the sulfur content of

[[Page 20404]]

distillate oil, residual oil, and coal fired in stationary sources. New 
York's SIP-approved NOX RACT regulations include stringent 
limits on boilers serving EGUs, stationary combustion turbines, ICI 
boilers and high electric demand day units. In addition, New York 
reviewed the source list provided by the FLMs and evaluated the 
controls and emissions at each of the facilities. Therefore, it is 
reasonable to assume that selecting additional point sources for four-
factor analysis would not have resulted in additional emission 
reduction measures being determined to be necessary to make reasonable 
progress for the second implementation period.
    Moreover, MANE-VU conducted a four-factor analysis to support Ask 
3, which requests that states pursue ultra-low sulfur fuel oil 
standards to address SO2 emissions. New York has done so and 
included its regulations in its SIP, thus satisfying the requirements 
that states determine the emission reduction measures that are 
necessary to make reasonable progress by considering the four factors, 
and that their long-term strategies include the enforceable emission 
limitations, compliance schedules, and other measures necessary to make 
reasonable progress. To the extent that MANE-VU and New York regard the 
measures in Asks 1 and 4 through 6 as being part of the region's 
strategy for making reasonable progress, we propose to find it 
reasonable for New York to address these Asks by pointing to existing 
measures that satisfy each.
c. Additional Long-Term Strategy Requirements
    The consultation requirements of 40 CFR 51.308(f)(2)(ii) provides 
that states must consult with other states that are reasonably 
anticipated to contribute to visibility impairment in a Class I area to 
develop coordinated emission management strategies containing the 
emission reductions measures that are necessary to make reasonable 
progress. Section 51.308(f)(2)(ii)(A) and (B) require states to 
consider the emission reduction measures identified by other states as 
necessary for reasonable progress and to include agreed upon measures 
in their SIPs, respectively. Section 51.308(f)(2)(ii)(C) speaks to what 
happens if states cannot agree on what measures are necessary to make 
reasonable progress.
    New York participated in and provided documentation of the MANE-VU 
intra- and inter-RPO consultation processes and addressed the MANE-VU 
Asks by providing information on the measures it has in place that 
satisfy each Ask.\97\ MANE-VU also documented disagreements that 
occurred during consultation. MANE-VU noted in their Consultation 
Report that upwind states expressed concern regarding the analyses the 
RPO utilized for the selection of states for the consultation. MANE-VU 
agreed that these tools, as all models, have their limitations, but 
nonetheless deemed them appropriate. Additionally, there were several 
comments regarding the choice of the 2011 modeling base year. MANE-VU 
agreed that the choice of base year is critical to the outcome of the 
study. MANE-VU acknowledged that there were newer versions of the 
emission inventories and the need to use the best available inventory 
for each analysis. However, MANE-VU disagreed that the choice of these 
inventories was not appropriate for the analysis. Upwind states also 
suggested that MANE-VU states adopt the 2021 timeline for regional haze 
SIP submissions for the second planning period. MANE-VU agreed with the 
reasons the comments provided, such as collaboration with data and 
planning efforts. However, MANE-VU disagreed that the 2018 timeline 
would prohibit collaboration. Additionally, upwind states noted that 
they would not be able to address the MANE-VU Asks until they finalize 
their SIPs. MANE-VU believed the assumption of the implementation of 
the Asks from upwind states in its 2028 control case modeling was 
reasonable.
---------------------------------------------------------------------------

    \97\ See appendix E ``MANE-VU Regional Haze Consultation 
Report.''
---------------------------------------------------------------------------

    In sum, New York participated in the MANE-VU intra- and inter-RPO 
consultation and satisfied the MANE-VU Asks, satisfying 40 CFR 
51.308(f)(2)(ii)(A) and (B). New York satisfied 40 CFR 
51.308(f)(2)(ii)(C) by participating in MANE-VU's consultation process, 
which documented the disagreements between the upwind states and MANE-
VU and explained MANE-VU's reasoning on each of the disputed issues. 
Thus, the EPA proposes that New York has satisfied the requirements of 
40 CFR 51.308(f)(2)(ii).\98\
---------------------------------------------------------------------------

    \98\ New York referenced the ``MANE-VU Regional Haze 
Consultation Plan (5/5/2017)'' and provided documentation of the 
MANE-VU consultation process in appendix E, ``MANE-VU Regional Haze 
Consultation Report (7/27/2018)'' of its Regional Haze SIP 
submission.
---------------------------------------------------------------------------

    The documentation requirement of 40 CFR 51.308(f)(2)(iii) provides 
that states may meet their obligations to document the technical bases 
on which they are relying to determine the emission reductions measures 
that are necessary to make reasonable progress through an RPO, as long 
as the process has been ``approved by all State participants.'' As 
explained above, New York chose to rely on MANE-VU's technical 
information, modeling, and analysis to support development of its long-
term strategy. The MANE-VU technical analyses on which New York relied 
are listed in the State's SIP submission and include source 
contribution assessments, information on each of the four factors and 
visibility modeling information for certain EGUs, and evaluations of 
emission reduction strategies for specific source categories. We 
propose to find that New York's participation in and reliance on the 
documentation developed by MANE-VU in support of its process and 
technical analyses to identify visibility-impairing pollutants and 
sources and to form the basis of its long-term strategy (the Asks) 
satisfies the requirements of 40 CFR 51.308(f)(2)(iii).
    Section 51.308(f)(2)(iii) also requires that the emissions 
information considered to determine the measures that are necessary to 
make reasonable progress include information on emissions for the most 
recent year for which the state has submitted triennial emissions data 
to the EPA (or a more recent year), with a 12-month exemption period 
for newly submitted data. New York's submission includes emissions 
inventory data from 2014.\99\ New York later provided a supplement 
including 2017 emission inventory data,\100\ which was the most recent 
year of data that New York had submitted to the EPA to meet the 
triennial reporting requirement within 12 months prior to New York's 
submittal in March 2020. New York's supplement updated the tables and 
graphs in the submission with the addition of the 2017 data. The EPA 
proposes to find that New York has satisfied the emission inventory 
requirement in 40 CFR 51.308(f)(2)(iii).
---------------------------------------------------------------------------

    \99\ See section 10.2.3 of the NY RH 2nd Implementation Period 
SIP submission.
    \100\ See docket document ``NY Regional Haze Inventory 
Supplement.''
---------------------------------------------------------------------------

    The EPA also proposes to find that New York considered the five 
additional factors in 40 CFR 51.308(f)(2)(iv) in developing its long-
term strategy. Pursuant to 40 CFR 51.308(f)(2)(iv)(A), New York noted 
that ongoing Federal emission control programs that contribute to 
emission reductions through 2028, including Cross-State Air Pollution 
Rule (CSAPR), Boiler Maximum Achievable Control Technology (MACT) 
Rules, Reciprocating Internal Combustion Engine (RICE) MACT Standards, 
Consent Decrees, and portable fuel container rules, would impact 
emissions

[[Page 20405]]

of visibility impairing pollutants from point and nonpoint sources in 
the second implementation period. For non-road sources, New York 
identified Clean Air Nonroad Diesel Final Rule-Tier 4, Control of 
Emissions from Nonroad Large Spark-Ignition Engines and Recreational 
Engines (Marine and Land-Based), and Small Engine Spark Ignition 
(``Bond'') Rule. New York identified Heavy Duty Diesel (207) Engine 
Standard, Tier 3 Motor Vehicle Standards, and Light Duty Vehicle GHG 
Rule for Model-Year 2017-2025 as on-road source controls. On-going 
measures from various source categories that New York considered in 
developing its long-term strategy were discussed in section 10.3.6 of 
their submission. Some of the SIP-approved state measures that New York 
---------------------------------------------------------------------------
describes are:

 Part 212: General Process Emission Sources
 Part 215: Open Burning
 Part 217: Motor Vehicle Emissions
 Part 219: Incinerators
 Part 220: Portland Cement Plants and Glass Plants
 Part 222: Distributed Generation Sources.
 Part 225: Fuel Composition and Use
 Part 227: Stationary Combustion Installations
 Part 231: New Source Review for New and Modified Facilities
 Part 243: CSAPR NOX Ozone Season Group 2 Trading 
Program
 Part 244: CSAPR NOX Annual Trading Program
 Part 245: CSAPR SO2 Group 1 Trading Program
 Part 249: Best Available Retrofit Technology

    NYSDEC provided a supplement that organizes these SIP-approved 
state measures by the first and second regional haze implementation 
periods. NYSDEC clarified that ``regulations adopted during the first 
implementation period are considered existing measures and are still 
necessary for `reasonable further progress' while regulations adapted 
during the second implementation period are considered part of New 
York's long-term strategy.'' \101\
---------------------------------------------------------------------------

    \101\ See docket document ``NY State Measures Supplement.''
---------------------------------------------------------------------------

    New York's consideration of measures to mitigate the impacts of 
construction activities as required by 40 CFR 51.308(f)(2)(iv)(B) 
includes discussion of a report that found that, from a regional haze 
perspective, crustal material from anthropogenic sources does not play 
a major role in visibility impairment at MANE-VU Class I areas.\102\ 
While construction activities can be responsible for direct PM 
emissions in the region, the dust settles out of the air relatively 
close to the sources and does not significantly impact visibility at 
distant Class I areas. New York cited section 107-11: Air Quality 
Protection of NYSDOT's Standard Specifications which requires 
contractors to apply protective measures to prevent dust from being 
released from construction sites. A summary of the PM emission 
inventory in New York can be found in section IV.H. of this 
rulemaking.\103\
---------------------------------------------------------------------------

    \102\ See section 10.7.1 of the NY RH 2nd Implementation Period 
SIP submission.
    \103\ Section 7.1.2 of the NY RH 2nd Implementation Period SIP 
submission addresses the PM10 inventory for NY.
---------------------------------------------------------------------------

    Source retirements and replacement schedules are addressed pursuant 
to 40 CFR 51.308(f)(2)(iv)(C) in section 10.3.8 of New York's 
submission. Source retirements and replacements were considered in 
developing the 2028 emission projections, with on the books/on the way 
retirements and replacement included in the 2028 projections. That 
said, New York's submittal indicated that shutdowns of large EGUs or 
industrial sources within the state were scheduled to occur. The units 
Indian Point 2 and Indian Point 3, located at Entergy Nuclear Power 
Marketing, had deactivation dates of April 30, 2020 and April 30, 2021, 
respectively. Greenpoint GT 1 unit, located at Hawkeye Energy Greenport 
LLC had a deactivation date of June 6, 2018. Finally, the units Selkirk 
1 and Selkirk 2, located at Selkirk Cogen Partners, LP had a 
deactivation date of May 17, 2018.\104\ New York confirmed that the 
deactivations of Indian Point 2 and Indian Point 3 occurred as 
scheduled on April 30, 2020 and April 30, 2021, respectively,\105\ and 
advised that the deactivation requests for the Greenpoint GT1, Selkirk 
1, and Selkirk 2 units were withdrawn and the units continue to 
operate.\106\
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    \104\ Refer to Section 10.3.8 of NY's submittal (as included 
above).
    \105\ Confirmation for the retirement of Indian Point 2 on April 
30, 2020 can be found in the Notes for Table III-2 on page 99 of the 
New York System Independent System Operators 2021 Load and Capacity 
Report (Gold Book).
    See https://www.nyiso.com/documents/20142/2226333/2021-Gold-Book-Final-Public.pdf/b08606d7-db88-c04b-b260-ab35c300ed64. 
Confirmation for the retirement of Indian Point 3 on April 30, 2021 
can be found in the Notes for Table III-2 on page 99 of the New York 
System Independent System Operators 2022 Load and Capacity Report 
(Gold Book). See https://www.nyiso.com/documents/20142/2226333/2022-Gold-Book-Final-Public.pdf/cd2fb218-fd1e-8428-7f19-df3e0cf4df3e.
    \106\ Confirmation for the withdrawal of the deactivation 
requests and continued operation for the Selkirk and Hawkeye units 
can be found on page 88 and page 95 (respectively) of the New York 
System Independent System Operators 2023 Load and Capacity Report 
(Gold Book). See https://www.nyiso.com/documents/20142/2226333/2023-Gold-Book-Public.pdf/c079fc6b-514f-b28d-60e2-256546600214.
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    In considering smoke management as required in 40 CFR 
51.308(f)(2)(iv)(D), New York stated that prescribed fires have not 
been shown to significantly contribute to visibility impairment in 
mandatory Class I areas.\107\ New York cited 6 NYCRR Part 194, Forest 
Practices, its regulation for prescribed burns that considers the 
possible impacts in mandatory Class I Federal areas. New York reported 
that there was a total of 12 prescribed fires in 2016 and a total of 11 
prescribed fires in 2015 that were conducted by NYSDEC on public 
land.\108\ A strengthened ban on open burning, 6 NYCRR Part 215, has 
also helped reduce forest fires. Additionally, New York has a program 
in which owners/managers must get prior authorization and a permit 
before implementing fire plans that require an approved burn plan be in 
place.
---------------------------------------------------------------------------

    \107\ See section 10.7.2 of the NY RH 2nd Implementation Period 
SIP submission.
    \108\ Id.
---------------------------------------------------------------------------

    New York considered the anticipated net effect of projected changes 
in emissions as required by 40 CFR 51.308(f)(2)(iv)(E) by discussing, 
in section 10.8 of its submission, the photochemical modeling for the 
2018-2028 period it conducted in collaboration with MANE-VU. The two 
modeling cases that were run were a 2028 base case, which considered 
only the on-the books controls, and a 2028 control case that considered 
implementation of the MANE-VU Ask. In response to this modeling, New 
York stated that the emission reductions will allow the visibility in 
mandatory class one areas to meet the RPGs through 2028, which is on 
pace for the 2064 natural visibility benchmark. Figures 9-2 through 9-8 
of New York's submission illustrate the predicted visibility 
improvements by 2028 resulting from the implementation of the Mane-VU 
regional long-term strategy by New York and others.
    Because New York has considered each of the five additional factors 
and either discussed the measures it has in place to address a factor 
or explained how a factor informed MANE-VU's technical analysis for 
second implementation period planning for reasonable progress, the EPA 
proposes to find that New York has satisfied the requirements of 40 CFR 
51.308(f)(2)(iv).

[[Page 20406]]

F. Reasonable Progress Goals

    Section 51.308(f)(3) contains the requirements pertaining to RPGs 
for each Class I area. Section 51.308(f)(3)(i) requires a state in 
which a Class I area is located to establish RPGs--one each for the 
most impaired and clearest days--reflecting the visibility conditions 
that will be achieved at the end of the implementation period as a 
result of the emission limitations, compliance schedules and other 
measures required under paragraph (f)(2) to be in states' long-term 
strategies, as well as implementation of other CAA requirements. The 
long-term strategies as reflected by the RPGs must provide for an 
improvement in visibility on the most impaired days relative to the 
baseline period and ensure no degradation on the clearest days relative 
to the baseline period. Section 51.308(f)(3)(ii) applies in 
circumstances in which a Class I area's RPG for the most impaired days 
represents a slower rate of visibility improvement than the uniform 
rate of progress calculated under 40 CFR 51.308(f)(1)(vi). Under 40 CFR 
51.308(f)(3)(ii)(A), if the state in which a mandatory Class I area is 
located establishes an RPG for the most impaired days that provides for 
a slower rate of visibility improvement than the URP, the state must 
demonstrate that there are no additional emission reduction measures 
for anthropogenic sources or groups of sources in the state that would 
be reasonable to include in its long-term strategy. Section 
51.308(f)(3)(ii)(A) does not apply to New York, as it does not have a 
Class I area, so New York is not required to establish RPGs. Section 
51.308(f)(3)(ii)(B), however, requires that if a state contains sources 
that are reasonably anticipated to contribute to visibility impairment 
in a Class I area in another state, and the RPG for the most impaired 
days in that Class I areas is above the URP, the upwind state must 
provide the same demonstration. New York's SIP revision included the 
modeled MANE-VU 2028 visibility projections at nearby Class I 
areas.\109\ While these projections may not represent the final RPGs 
for these Class I areas, all of the 2028 projections for the most 
impaired days at these areas (Acadia, Brigantine, Great Gulf, Lye 
Brook, Moosehorn, Dolly Sods and Shenandoah) are well below the 
respective 2028 glidepaths. In addition, we note that New York's 
largest contribution is to Lye Brook Wilderness, in Vermont.
---------------------------------------------------------------------------

    \109\ Section 9.11 of the NY RH 2nd Implementation Period SIP 
submission.
---------------------------------------------------------------------------

    The EPA proposes to determine that New York has satisfied the 
applicable requirements of 40 CFR 51.308(f)(3) relating to reasonable 
progress goals.

G. Monitoring Strategy and Other Implementation Plan Requirements

    Section 51.308(f)(6) specifies that each comprehensive revision of 
a state's regional haze SIP must contain or provide for certain 
elements, including monitoring strategies, emissions inventories, and 
any reporting, recordkeeping and other measures needed to assess and 
report on visibility. A main requirement of this subsection is for 
states with Class I areas to submit monitoring strategies for 
measuring, characterizing, and reporting on visibility impairment. New 
York does not have a Class I area and therefore its SIP is not required 
to provide for a monitoring strategy and associated requirements. It is 
also not subject to the requirements of 40 CFR 51.308(f)(6)(i), (ii), 
and (iv), which apply only to states with Class I areas and pertain to 
the establishment of monitoring sites and reporting and use of 
monitoring data. However, pursuant to 40 CFR 51.308(f)(6)(iii), New 
York's SIP is required to provide for procedures by which monitoring 
data and other information are used in determining the contribution to 
emissions to visibility impairment in other states. MANE-VU and New 
York accept the contribution assessment analysis, published by MANE-VU 
on its website.\110\ The analysis included Eulerian (grid-based) source 
models, Lagrangian (air parcel-based) source dispersion models, as well 
as a variety of data analysis techniques that include source 
apportionment models, back trajectory calculations, and the use of 
monitoring and inventory data. New York State agrees that MANE-VU is 
providing appropriate technical information by using the IMPROVE 
program data.\111\ New York provides a description and location for the 
IMPROVE monitors in the mandatory Class I Federal areas to which New 
York contributes to regional haze.\112\
---------------------------------------------------------------------------

    \110\ See appendix C of the NY RH 2nd Implementation Period SIP 
submission, ``Selection of States for MANE-VU Regional Consultation 
(2018).''
    \111\ Section 6.2 of the NY RH 2nd Implementation Period SIP 
submission.
    \112\ Section 6.3 of the NY RH 2nd Implementation Period SIP 
submission.
---------------------------------------------------------------------------

    Therefore, the EPA is proposing to find that New York's SIP 
provides for the necessary elements to satisfy the applicable 
requirements in 40 CFR 51.308(f)(6)(iii) for states without Class I 
areas.
    Section 51.308(f)(6)(v) requires SIPs to provide for a statewide 
inventory of emissions of pollutants that are reasonably anticipated to 
cause or contribute to visibility impairment, including emissions for 
the most recent year for which data are available and estimates of 
future projected emissions. It also requires a commitment to update the 
inventory periodically. New York provides for emissions inventories and 
estimates for future projected emissions by participating in the MANE-
VU RPO and complying with EPA's Air Emissions Reporting Rule (AERR). In 
40 CFR part 51, subpart A, the AERR requires states to submit updated 
emissions inventories for criteria pollutants to EPA's Emissions 
Inventory System (EIS) every three years. The emission inventory data 
is used to develop the National Emissions Inventory (NEI), which 
provides for, among other things, a triennial state-wide inventory of 
pollutants that are reasonably anticipated to cause or contribute to 
visibility impairment.
    Section 7.1 of New York's second implementation period regional 
haze SIP submission includes tables of NEI data. The source categories 
of the emissions inventories included are: (1) Point sources, (2) 
nonpoint sources, (3) non-road mobile sources, and (4) on-road mobile 
sources. The point source category is further divided into Air Markets 
Program Data (AMPD) point sources and non-AMPD point sources.\113\ New 
York included NEI emissions inventories for 2002 (one of the regional 
haze program baseline years), 2008, and 2014 for the following 
pollutants SO2, NOX, PM10, 
PM2.5, VOCs, CO and NH3; data from New York's 
2011 base year emission inventory was also included for the above 
referenced pollutants. New York also provided a summary of 
SO2 and NOX emissions for AMPD sources for the 
years of 2016 and 2017.\114\ New York's SIP revision was submitted in 
March 2020; therefore, the year of the most recent NEI at the time of 
submission to the EPA was 2017. Since only 2014 NEI data was included, 
NYSDEC provided a supplement that updated the emission inventory table 
and graphs with the 2017 NEI data.\115\
---------------------------------------------------------------------------

    \113\ AMPD sources are facilities that participate in EPA's 
emission trading programs. The majority of AMPD sources are electric 
generating units (EGUs).
    \114\ Table 7-2 and 7-14 of the NY RH 2nd Implementation Period 
SIP submission.
    \115\ See docket document ``NY Regional Haze Inventory 
Supplement.''
---------------------------------------------------------------------------

    Section 51.308(f)(6)(v) also requires states to include estimates 
of future projected emissions and include a commitment to update the 
inventory

[[Page 20407]]

periodically. New York relied on the MANE-VU projected emissions to 
2028, which is the end of the second implementation period.\116\ MANE-
VU completed two 2028 projected emissions modeling cases--a 2028 base 
case that considers only on-the-books controls and a 2028 control case 
that considers implementation of the MANE-VU Asks.\117\
---------------------------------------------------------------------------

    \116\ See section 7.2 of the NY RH 2nd Implementation Period SIP 
submission.
    \117\ See appendix D ``Technical Support Document for the 2011 
Northeastern U.S. Gamma Emission Inventory (January 2018)'' and 
``Ozone Transport Commission/Mid-Atlantic Northeastern Visibility 
Union 2011 Based Modeling Platform Support Document--October 2018 
Update (October 2018)'' in the SIP submission.
---------------------------------------------------------------------------

    The EPA proposes to find that New York has met the requirements of 
51.308(f)(6)(v) by its continued participation in MANE-VU and on-going 
compliance with the AERR, and that no further elements are necessary at 
this time for New York to assess and report on visibility pursuant to 
40 CFR 51.308(f)(6)(vi).

H. Requirements for Periodic Reports Describing Progress Towards the 
Reasonable Progress Goals

    Section 51.308(f)(5) requires that periodic comprehensive revisions 
of states' regional haze plans also address the progress report 
requirements of 40 CFR 51.308(g)(1) through (5). The purpose of these 
requirements is to evaluate progress towards the applicable RPG for 
each Class I area within the state and each Class I area outside the 
state that may be affected by emissions from within that state. Section 
51.308(g)(1) and (2) apply to all states and require a description of 
the status of implementation of all measures included in a state's 
first implementation period regional haze plan and a summary of the 
emission reductions achieved through implementation of those measures. 
Section 51.308(g)(3) applies only to states with Class I areas within 
their borders and requires such states to assess current visibility 
conditions, changes in visibility relative to baseline (2000-2004) 
visibility conditions, and changes in visibility conditions relative to 
the period addressed in the first implementation period progress 
report. Section 51.308(g)(4) applies to all states and requires an 
analysis tracking changes in emissions of pollutants contributing to 
visibility impairment from all sources and sectors since the period 
addressed by the first implementation period progress report. This 
provision further specifies the year or years through which the 
analysis must extend depending on the type of source and the platform 
through which its emission information is reported. Finally, 40 CFR 
51.308(g)(5), which also applies to all states, requires an assessment 
of any significant changes in anthropogenic emissions within or outside 
the state have occurred since the period addressed by the first 
implementation period progress report, including whether such changes 
were anticipated and whether they have limited or impeded expected 
progress towards reducing emissions and improving visibility.
    New York's submission describes the status of the measures of the 
long-term strategy from the first implementation period. As a member of 
MANE-VU, New York considered the MANE-VU Asks and adopted corresponding 
measures into its long-term strategy for the first implementation 
period. The MANE-VU Asks were: (1) Timely implementation of Best 
Available Retrofit Technology (BART) requirements; (2) EGU controls 
including Controls at 167 Key Sources that most affect MANE-VU Class I 
areas; (3) Low sulfur fuel oil strategy; and (4) Continued evaluation 
of other control measures.
    New York did have sources identified on the list of 167 EGUs within 
its borders and provided a list of the sources subject to BART controls 
and provided a summary of the control requirements for the subject 
emission units at each facility.\118\ Emission limits or alternate 
compliance methods (i.e., shutdowns and capping provisions) for these 
facilities were approved as SIP revisions by EPA (77 FR 51915, August 
28, 2012), except for the Roseton and Danskammer Generating Stations. 
EPA issued FIP limits for the BART-eligible sources at these 
facilities, which were later adopted into the respective Title V 
permits and resubmitted as SIP revisions. Danskammer's BART measures 
were approved as SIP revisions, effective January 3, 2018 (82 FR 57126, 
December 4, 2017), and Roseton's BART measures received approval 
effective March 18, 2018 (83 FR 6970, February 16, 2018).
---------------------------------------------------------------------------

    \118\ Table 8-1 of the NY RH 2nd Implementation Period SIP 
submission.
---------------------------------------------------------------------------

    Lastly, in response to a MANE-VU Ask, in 2015 New York promulgated 
a rule to reduce the sulfur content in commercial heating oil and to 
prohibit the use of heavy heating oils that contain high levels of 
sulfur. The EPA approved this rule into the SIP. (83 FR 42589, August 
28, 2018). In section 7.1.4 of New York's submission, New York explains 
that the SO2 decreases are attributed to the low sulfur fuel 
strategy and to the 90% or greater reductions in SO2 
emissions from the 167 EGU stacks (both inside and outside of MANE-VU), 
as requested in the MANE-VU ``Ask'' for the states within MANE-VU for 
the first regional haze planning period. Since some components of the 
MANE-VU low sulfur fuel strategy have milestones of 2016 and 2018, and 
as MANE-VU states continue to adopt rules to implement the strategy, 
additional SO2 emissions reductions have likely been 
obtained since 2017 and are expected to continue into the future.
    The EPA proposes to find that New York has met the requirements of 
51.308(g)(1) and (2) because its SIP submission describes the measures 
included in the long-term strategy from the first implementation 
period, as well as the status of their implementation and the emission 
reductions achieved through such implementation.
    Section 51.308(g)(3) requires states with Class I areas to report 
on the visibility conditions and changes at those areas. New York does 
not have any Class I areas and is not required to address this 
provision.
    Pursuant to 40 CFR 51.308(g)(4), New York provided a summary of 
emissions of SO2, NOX, PM10, 
PM2.5, VOCs, and NH3 from all sources and 
activities, including from point, nonpoint, non-road mobile, and on-
road mobile sources, for the time period from 2002 to 2017. New York 
explained that 2014 was the most recent year for which it had submitted 
emission estimates to fulfill the requirements of part 51 subpart A 
(the AERR), however since their submission was not until 2020, New York 
later provided a supplement that included the 2017 data.\119\
---------------------------------------------------------------------------

    \119\ See docket document ``NY Regional Haze Inventory 
Supplement.''
---------------------------------------------------------------------------

    The emissions information submitted by New York indicates that 
SO2 emissions decreased over the 2002 through 2017 period. 
SO2 emissions from AMPD sources in New York have declined 
from 2002 to 2017. Also, SO2 emissions from non-AMPD point 
sources and nonpoint, non-road, and on-road sources all declined from 
2002 to 2017, although not all categories have shown a consistent 
decrease.\120\ SO2 decreases can be attributed to the low 
sulfur fuel strategy and the 90% or greater reduction in SO2 
emissions at the EGU stacks identified in the MANE-VU ``Ask'' for 
states within MANE-VU for the first regional haze planning

[[Page 20408]]

period. Other SO2 emission decreases are due to source 
shutdowns and fuel switching.\121\
---------------------------------------------------------------------------

    \120\ See section 7.1.4 of the NY RH 2nd Implementation Period 
SIP submission and ``NY Regional Haze Inventory Supplement.''
    \121\ See page 7-25 of the NY RH 2nd Implementation Period SIP 
submission.
---------------------------------------------------------------------------

    Total NOX emissions have also declined from 2002 to 
2017, although not all categories have shown a consistent decrease. 
NOX emissions from AMPD, non-road, and on-road sources in 
New York have declined from 2002 to 2017. New York explains that 
nonpoint emissions of NOX have been variable from 2002 to 
2014 due to year variation, as well as changes to the tools used to 
estimate nonpoint emissions. New York asserts that reductions in 
NOX emissions from AMPD sources are due to EGU retirements 
and Federal regional allowance trading programs, while reductions in 
non-road and on-road NOX are due to a range of Federal 
requirements for different types of engines and fuels.\122\
---------------------------------------------------------------------------

    \122\ See section 7.1.1 of the NY RH 2nd Implementation Period 
SIP submission.
---------------------------------------------------------------------------

    Emissions of PM10 decreased overall from 2002 to 2017. 
New York explains that changes in PM10 emissions from 2002 
to 2008 and 2011 to 2014 are likely due to changes to the methods used 
for estimating residential wood combustion emissions.\123\
---------------------------------------------------------------------------

    \123\ See section 7.1.2 of the NY RH 2nd Implementation Period 
SIP submission.
---------------------------------------------------------------------------

    Similarly, NH3 emissions in New York were lower overall 
in 2017 relative to 2002, although emissions from nonpoint sources do 
show an increase from 2014 to 2017.\124\ New York notes that it 
believes there was no significant change in nonpoint ammonia emissions 
from 2014-2017; the State attributes the disparity to changes in EPA 
modeling and methodology.\125\
---------------------------------------------------------------------------

    \124\ See docket document ``NY Regional Haze Inventory 
Supplement.''
    \125\ Id.
---------------------------------------------------------------------------

    Total PM2.5 emissions in New York have remained constant 
from 2002-2014, with 2008 being an outlier. Similar to PM10, 
New York explains that some of increases or declines in 
PM2.5 could be due to changes in estimation methodologies 
for categories such as yard waste burning, paved and unpaved road dust, 
and residential wood combustion.\126\ There was a reduction in total 
PM2.5 emission from 2014 to 2017.\127\
---------------------------------------------------------------------------

    \126\ See section 7.1.3 of the NY RH 2nd Implementation Period 
SIP submission.
    \127\ See docket document ``NY Regional Haze Inventory 
Supplement.''
---------------------------------------------------------------------------

    In New York, the total VOC emissions have generally declined over 
the 2002 to 2014 period; emissions from nonpoint sources have increased 
during this time causing an increase in the total VOC emissions in 
2017. NYSDEC believes there was no significant change in emissions from 
2014-2017, but rather attributes the disparity to changes in EPA 
modeling and methodology.\128\ New York states that decreases in VOC 
emissions can be attributed to Federal and state rules for evaporated 
sources of VOC emissions.\129\
---------------------------------------------------------------------------

    \128\ Id.
    \129\ See section 7.1.5 of the NY RH 2nd Implementation Period 
SIP submission.
---------------------------------------------------------------------------

    The EPA is proposing to find that New York has satisfied the 
requirements of 40 CFR 51.308(g)(4) by providing emissions information 
for SO2, NOX, PM10, PM2.5, 
VOCs, CO and NH3 broken down by type of source.
    New York uses the emissions trend data in the SIP submission \130\ 
and the supplemental information \131\ to support the assessment that 
anthropogenic haze-causing pollutant emissions in New York have 
decreased during the reporting period and that changes in emissions 
have not limited or impeded progress in reducing pollutant emissions 
and improving visibility. In conclusion, the EPA is proposing to find 
that New York has met the requirements of 40 CFR 51.308(g)(5).
---------------------------------------------------------------------------

    \130\ See section 7 ``Emission Inventory'' of the NY RH 2nd 
Implementation Period SIP submission.
    \131\ See docket document ````NY Regional Haze Inventory 
Supplement.''
---------------------------------------------------------------------------

I. Requirements for State and Federal Land Manager Coordination

    Section 51.308(i)(2)'s FLM consultation provision requires a state 
to provide FLMs with an opportunity for consultation that is early 
enough in the state's policy analyses of its emission reduction 
obligation so that information and recommendations provided by the FLMs 
can meaningfully inform the state's decisions on its long-term 
strategy. If the consultation has taken place at least 120 days before 
a public hearing or public comment period, the opportunity for 
consultation will be deemed early enough. Regardless, the opportunity 
for consultation must be provided at least sixty days before a public 
hearing or public comment period at the state level. Section 
51.308(i)(2) also provides two substantive topics on which FLMs must be 
provided an opportunity to discuss with states: assessment of 
visibility impairment in any class I area and recommendations on the 
development and implementation of strategies to address visibility 
impairment. Section 51.308(i)(3) requires states, in developing their 
implementation plans, to include a description of how they addressed 
FLMs' comments.
    The states in the MANE-VU RPO conducted FLM consultation early in 
the planning process concurrent with the state-to-state consultation 
that formed the basis of the RPO's decision making process. As part of 
the consultation, the FLMs were given the opportunity to review and 
comment on the technical documents developed by MANE-VU. The FLMs were 
invited to attend the intra- and inter-RPO consultations calls among 
states and at least one FLM representative was documented to have 
attended seven intra-RPO meetings and all inter-RPO meetings. New York 
participated in these consultation meetings and calls.\132\
---------------------------------------------------------------------------

    \132\ See appendix E of the NY RH 2nd Implementation Period SIP 
submission, ``MANE-VU Regional Haze Consultation Summary (MANE-VU, 
July 2018).''
---------------------------------------------------------------------------

    As part of this early engagement with the FLMs, in April 2018 the 
NPS sent letters to the MANE-VU states requesting that they consider 
specific individual sources in their long-term strategies. NPS used an 
analysis of emissions divided by distance (Q/d) to estimate the impact 
of MANE-VU facilities. To select the facilities, NPS first summed 2014 
NEI NOX, PM10, SO2, and SO4 
and divided by the distance to a specified NPS mandatory Class I 
Federal area across all MANE-VU states relative to Acadia, Mammoth Cave 
and Shenandoah National Parks, then ranked the Q/d values relative to 
each Class I area, created a running total, and lastly identified those 
facilities contributing to 80% of the total impact at each NPS Class I 
area. NPS applied a similar process to facilities in Maine relative to 
Acadia National Park. NPS merged the resulting lists of facilities and 
sorted them by their states. NPS suggested that a state consider those 
facilities comprising 80% of the Q/d total, not to exceed the 25 top 
ranked facilities. The NPS identified 39 facilities in New York in this 
letter.\133\ In a letter dated October 22, 2018, NPS identified 26 
facilities for which more control information was desired. To address 
the NPS's request for more information, section 10.4 of New York's 
submission details the emission controls and updates to the 26 
facilities that have occurred since the 2014 NEI. Table 10-4 in New 
York's submission contains the 26 facilities that were identified by 
the NPS. The U.S. Forest Service requested that New York consider 
specific individual sources in its long-term strategy (LTS) and 
identified three

[[Page 20409]]

facilities that New York should consider. To address the Forest 
Service's request, more information was provided in section 10.5 of New 
York's submission on the emission controls and updates the facilities 
have undergone since 2011. New York provided a supplement that contains 
emission data for the facilities identified by the FLMs.\134\ This 
supplement provides emission data from 2018-2020 for the facilities 
mentioned in section 10.4 and 10.5 of New York's submission. In 
addition, New York provided a summary table of the controls at each of 
the facilities identified by the FLMs for SO2, PM, and 
NOX.\135\
---------------------------------------------------------------------------

    \133\ See appendix E of the NY RH 2nd Implementation Period SIP 
submission, ``MANE-VU Regional Haze Consultation Summary (MANE-VU, 
July 2018).''
    \134\ See docket document ``FLM List Recent Emissions.''
    \135\ See docket document ``FLM List Facility Controls.''
---------------------------------------------------------------------------

    On February 22, 2019, New York submitted a draft Regional Haze SIP 
to the U.S. Forest Service, the U.S. Fish and Wildlife Service, and the 
National Park Service for a 60-day review and comment period pursuant 
to 40 CFR 51.308(i)(2).\136\ New York received comments from the Forest 
Service on April 22, 2019, and from the National Park Service on May 
11, 2019. The U.S. Fish and Wildlife Service indicated that they did 
not have any comments on April 17, 2019. New York responded to the FLM 
comments and included the responses in appendix A of its submission, in 
accordance with 40 CFR 51.308(i)(3). On August 7, 2019, New York 
published a Public Notice in the NYSDEC Environmental Notice Bulletin 
(ENB) announcing that it planned to submit to EPA a Regional Haze SIP 
revision and providing a 30-day period for the public to comment or to 
request a hearing. On September 4, 2019, New York published a notice in 
the ENB extending the period for the public to comment or request a 
hearing to October 7, 2019. New York received and responded to public 
comments and included both in their submission.
---------------------------------------------------------------------------

    \136\ See appendix A of the NY RH 2nd Implementation Period SIP 
submission, ``Summary and Response to Federal Land Manager 
Comments.''
---------------------------------------------------------------------------

    For the reasons stated above, the EPA proposes to find that New 
York has met its requirements under 40 CFR 51.308(i) to consult with 
the FLMs on its regional haze SIP for the second implementation period. 
New York committed in its SIP to ongoing consultation with the FLMs on 
regional haze issues throughout the implementation period, consistent 
with the requirement of 40 CFR 51.308(i)(4).\137\
---------------------------------------------------------------------------

    \137\ See section 4 of the NY RH 2nd Implementation Period SIP 
submission.
---------------------------------------------------------------------------

V. Environmental Justice Considerations

    New York provided information related to its environmental justice 
(EJ) considerations as part of its SIP submission. This information 
consisted of details on New York's Climate Leadership and Community 
Protection Act (CLCPA), which expedites the transition to a clean 
energy economy by requiring New York to achieve a carbon free 
electricity system by 2040 and reduce greenhouse gas emissions 85% 
below 1990 levels by 2050. New York explains that the CLCPA targets 
investments to benefit disadvantaged communities, creates tens of 
thousands of new jobs, and improves public health and quality of life 
via more robust clean energy choices. The CLCPA also focuses on 
environmental justice by requiring state agencies to invest at least 
35% of clean energy program resources to benefit disadvantaged 
communities. Through the adoption of these regulations, New York 
intends to reduce greenhouse gas emissions 85% by 2050, with an interim 
benchmark of 40% reduction in emissions by 2030 (both relative to 1990 
levels). Additionally, through the CLCPA, New York intends to form a 
transition working group to ensure that individuals working in 
conventional energy industries are provided with training and 
opportunities in the growing clean energy economy.
    New York received several comments regarding its consideration of 
EJ within its Regional Haze plan for the second implementation period. 
In particular, New York was asked by several commentors to analyze the 
EJ impacts to ensure the RH plan would reduce greenhouse gas emissions 
where possible, to align with the CLCPA and minimize harms to 
disproportionately impacted communities. One commentor stated EJ 
impacts are the type of non-air quality impacts the New York should 
consider when it sets RPGs for Class 1 areas and determines reasonable 
progress measures for specific sources. Another commentor critiqued New 
York for its lack of evaluation as to whether its reasonable progress 
measures will affect disproportionately impacted communities and 
suggested that incorporating EJ impacts into the RPG analysis would 
maximize the environmental benefits of the regional haze program.
    New York responded to these comments affirming that while the 
Regional Haze Rule does not require states to address EJ or greenhouse 
gas emissions reductions or impacts, and that New York is analyzing the 
impact of state measures through other regulatory efforts and 
initiatives it has adopted which will result in emission reductions in 
EJ areas. New York also asserted that EJ would be further addressed 
through programs such as the CLCPA, which has a large EJ component, and 
welcomed the commentor to comment on such processes as they proceed.
    That said, the EPA believes that this action is not likely to 
result in any new disproportionate and adverse effects on communities 
with EJ concerns. It is expected that the air quality improvements 
associated with New York's regional haze plan will provide air quality 
benefits across the state, and will not result in any new potentially 
disproportionate and adverse effects within communities with EJ 
concerns. However, since EJ concerns are more accurately captured when 
evaluating relatively smaller areas or on a community level basis, the 
EPA believes that it is not practicable to assess, via a comprehensive 
EJ analysis, whether this proposed action would result in any new 
disproportionate and adverse effects on communities with EJ concerns. 
Furthermore, the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. In addition, there is no 
information in the record indicating that this action is inconsistent 
with the stated goal of E.O. 12898 and/or that this action is expected 
to have disproportionately high or adverse human health or 
environmental effects on a particular group of people.
    In conclusion, the EPA expects that this proposed action will 
generally be neutral or contribute to reduced environmental and health 
impacts on all populations in New York, including people of color and 
low-income populations. At a minimum, this action is not expected to 
worsen any air quality and it is expected this action will ensure the 
State is meeting requirements to attain and/or maintain air quality 
standards. The EPA therefore concludes that this proposed rule will not 
have or lead to disproportionately high or adverse human health or 
environmental effects on communities with EJ concerns. New York 
provided details on its CLCPA as part of its SIP submittal to 
demonstrate the State's consideration of EJ even though the CAA and 
applicable implementing regulations neither prohibit nor require an 
evaluation. The EPA's evaluation of New York's EJ considerations is 
described above. The analysis was done for the purpose of providing 
additional context and information about this rulemaking to the public, 
and not as a basis of the action.

[[Page 20410]]

The EPA is taking action under the CAA on bases independent of the 
State's evaluation of EJ.

VI. The EPA's Proposed Action

    The EPA is proposing to approve New York's May 12, 2020, 
supplemented on February 16, 2022, SIP submission as satisfying the 
regional haze requirements for the second implementation period 
contained in 40 CFR 51.308(f).

VII. Statutory and Executive Order Reviews

    Under the CAA, 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, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 
2023);
     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    In addition, the SIP is not proposing to apply on any Indian 
reservation land or in any other area where the EPA or an Indian Tribe 
has demonstrated that a Tribe has jurisdiction. In those areas of 
Indian country, the rule does not have Tribal implications and it will 
not impose substantial direct costs on Tribal governments or preempt 
Tribal law as specified by Executive Order 13175 (65 FR 67249, November 
9, 2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    The NYSDEC did not evaluate EJ considerations by means of an 
extensive and comprehensive EJ analysis as part of its SIP submittal; 
the CAA and applicable implementing regulations neither prohibit nor 
require such an evaluation. Nevertheless, NYSDEC did reference existing 
EJ programs within its SIP submittal, as described above in section V, 
``Environmental Justice Considerations.'' The EPA did not perform an EJ 
analysis and did not consider EJ in this action. Consideration of EJ is 
not required as part of this action, and there is no information in the 
record inconsistent with the stated goal of E.O. 12898 of achieving 
environmental justice for people of color, low-income populations, and 
Indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

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

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2024-06105 Filed 3-21-24; 8:45 am]
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