UNITED STATES ENVIRONMENTAL PROTECTI ON AGENCY REGION 2 AI R PROGRAMS BRANCH

Technical Support Document

for EPA ’ s Proposed Rulemaking

for the New York State Implementation Plan Revision:

State Implementation Plan Revision For Meeting the Infrastructure Requirements

In the Clean Air Act Dated December 2007, October 2008 and March 2010

201 32 Table of Contents I. What is the Background for this Action? II. What is a Section 110(a) ( 1) and (2) SI P?
III. Scope of Infr astructure SI Ps
I V . What did New York Submit? V. What are the required elements under Section 110(a)(1) and (2)?
V I

. How do the New York In frastructure Submittal s Meet the Requirements under Section 110(a)(1) and (2) for the 1997 8

- hour ozone NAAQs, the 1997 and 2006 PM2.5 NAAQS ?
**A.** Emission limits and o ther c ontrol m easures

– Section 110(a)(2)(A) **B.** Ambient air quality m onitoring, c ompilation, d ata anal ys is, and r eporting

– Section 110(a)(2)(B) **C.** Enforcement and s tationary s ource p ermitting

– Section 110(a)(2 )(C) **D.** Interst ate transport

– Section 110(a)(2)(D) **E.** Adequate resources

- Section 110(a)(2)(E): **F.** Stationary

s ource e missions m onitoring and r eporting

– Section 110(a)(2)(F) **G.** Emergency p owers and c ontingency p lans

– Section 110(a)(2)(G) **H.** Future SIP revisions

- Sec tion 110(a)(2)(H): **I.** State Implementation Plan r evisions for n ew n onattainment areas

– Section 110(a)(2)(I) **J.** Consultation and p ublic n otification

– S ection 110(a)(2)(J) K. Air quality m odeling and r eporting

– Section 110(a)(2)(K) L. Major s tationary source p ermitting f ees

– Section 110(a)(2)(L) M. Consultation with local e ntities

– Section 110(a)(2)(M)3

CAA Section 110(a)(2) 1997 8

- hour Ozone

Standard 1997 PM2.5 annual Standard 2006 PM2.5 24

- hr Standard
A approve approve approve B approve approve approve C

–Regs a

pprove a pprove approve PSD approve approve approve NSR approve approve approve D i(I) P1 NA NA NA P2 NA NA NA D i (II) P3 approve approve approve P4 RH approve RH approve RH approve D ii approve approve approve E i approve approve approve E ii Cond approve/approve Cond approve/approve Cond approve/approve E iii Cond approve/ approve Cond approve/approve Cond approve/ approve F approve approve approve G approve approve Approve H approve approve approve I NA NA NA J

- 1 approve appro ve approve J

- 2 approve approve approve J

- 3 approve approve approve K approve approve approve L approve approve approve M approve approve approve4

**I. What is the Background for this Action?**  On July 18, 1997, EPA promulgated a revised national ambi ent air qualit y standard (NAAQS or standards ) for ozone (62 FR 38856) and new NAAQS for fine particle matter ( PM 2.5 )( 62 FR 38652). The revised ozone NAAQS was based on 8

- hour average concentrations. The 8

- hour averaging period replaced the previous 1

- hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm. The new PM 2.5 NAAQS was established on health

- based annual standards for PM 2.5 of 15.0 micrograms per cubic meter (μg/m 3 ) based on a 3

- year average o f annual mean PM 2.5 concentrations and a 24

- hour standard of 65 μg/m 3 based on a 3

- ye ar average of the 98 th percentile of 24

- hour concentrations. The Clean Air Act (CAA) requires S tate Implementation Plans (SI Ps) meeting the requirements of sections 110 (a)(1) and (2) be submitted by states within 3 y ears after promulgation of a new or revised standard. Sections 110(a)(1) and (2) require states to address basic SI P requirements, including emissions inventories, monitoring, and modeling to assure attainme nt and maintenance of the standards. States were required to submit such SIPs for the 1997 standards to EPA no later than June 2000. However, intervening litigation over the 1997 8

- hour ozone standards created uncertainty

about how to proceed and certain state s did not provide the required "infrastructure" SIP submission for this newly promulgated standard. Section 110(a) imposes the obligation upon state s to make a SI P submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and anal yt ical tools available at the time the state develops and submits the SI P for a new or revised NAAQS affects the content of the submission. The contents of such SI P submissi ons may also vary depending upon what provisions the state 's existing SI P alread y contains. In the case of the 1997 8

- hour ozone NAAQS, state s ty picall y have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in c onnection with previous ozone standards. On October 17, 2006 (71 FR 61144), effective December 18, 2006, EPA revised the 24

- hour average PM 2.5 primary

and secondary

NAAQS from 65 μg/m 3 to 35 μg/m 3 . As required b y section 110(a)(1) of the CAA, the 110 (a)(2) submittals were due within three ye ars after promulgation of the revised standard

.

**II. What is a Section 110(a)(1) and (2) SIP?**  Sections 110(a)(1) and (2) of the CAA require, in part, that states submit to EPA plans to implement, maintain and enf orce each of the NAAQS promulgated b y EPA. Sections 110(a)(1) and (2) require states to address basic SIP requirements including emission inventories, monitoring, and modeling to assure attainment and maintenance of the standards. By statute, SI Ps meetin g the requirements of s ections 110(a)(1) and (2) are to be submitted by state s within three ye ars after promulgation of a new or revised standard. These SI Ps are commonly called infrastructure SI Ps.5

EPA issued a guidance document regarding infrastructure SIPs on October 2, 2007, entitled, "Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8

- hour Ozone and PM2

. 5 National Ambient Air Quality Standards." EPA also issued a September 25, 2009 guidance memo entitled "Guidance on SI P Elements Required Under Sections 110(a)(1) and (2) for the 2006 24 Hour Fine Particle NAAQS", which clarified in further detail, certain elements to meet the requirements of sections 110(a)(1) and (2) of the CAA for both the 1997 and 2006 PM2.5 NAAQS. Specifically , EPA provided additional guidance for satisfying the section 110(a)(2)(D) requirements for the 2006 PM2.5 NAAQS, as well as guidance for satisfying the section 110(a)(2)(G) requirements for both the 1997 and 2006 PM2.5 NAAQS Both guidance documents noted that to the extent an existing SI P already meets the s ection 110(a)(1) and (2) requirements, states need onl y to certify that fact to EPA. On March 4, 2004, Earth Justice submitted a notice of intent to sue related to EPA's failure to take action, i.e., issue finding of failure to submit, against states that had failed to make SI P submi ssions related to CAA s ections 110(a)(1) and (2), the "infrastructure" requirements. On March 10, 2005, the EPA entered into a Consent Decree with Earth Justice that obligated the EPA to make official findings whether states had made required implementation plan submissions by

dates certain. The Consent Decree obligated the EPA to determine whether states have made SIP submissions required to meet s ection 110(a)(1) and (2) related to interstate transport b y no later than March 15, 2005. The Consent Decree also obligates the EPA to make a determination whether states have made submissions necessary to meet the remaining requirements under s ection 110(a)(1) and (2) by December 15, 2007, for the 8

- Hour Ozone N AAQS , and b y October 5, 2008, for the Fine Particulate Matter NAAQS . It should be noted that the latter determinations pertain only to whether the submissions are complete, pursuant to s ection 110(k)(1)( A), and do not constitute EPA approval or disapproval of such submissions. In addition, the determinations required b y the Consent Decree explicitly exclude any determinations regarding: (i) submissions required by s ection 110(a)(2)(C) to the extent that s ubsection pertains to a nonattainment area new source review permit program in Part D Title I of the CAA; and (ii) submissions required by s ection 110(a)(2)(I) for Part D Title I nonattainment plans. EPA entered into a C onsent D ecree with Earth Justice which required EPA, among other things, to make a determination whether states have made the SI P submissions necessary for EPA to determin e whether each state has made complete submissions , pursuant to 110(k)(1)(A) to meet the requirements of section 110(a) (2) for the 1997 8

- hour ozone NAAQS by December 15, 2007. Subsequently , EPA received an extension of the date to complete this Federal Register notice until March 17, 2008, based upon an agreement to make the findings with respect to submissions made b y J anuary

7, 2008. Inaccordance with the consent decree, EPA made completeness findings for each state based upon what the Agency received from each state as of January 7, 2008. On March 27, 2008, EPA published a final rulemaking entitled, "Completeness Findings for Section 110(a) State Implementation Plans; 8

- hour Ozone NAAQS," making a finding that each6

state had submitted, or failed to submit, a complete SIP that provided the basic program elements of section 110(a)(2) necessary to implement the 1997 8

- hour ozone NAAQS. (See 73 FR 16205.) On October 22, 2008, EPA published a final rulemaking entitled, "Completeness Findings for Section 110(a) State Implementation Plans Pertaining to the Fine Particulate Matter (PM 2.5 ) NAAQS," making a finding that each state had submitted, or failed to submit, a complete SIP that provided the basic program elements of section 110(a)(2) necessary to implement the 1997 PM 2.5 NAAQS. (See 73 FR 62902.) For those state s that did receive findings, the findings of failure to s ubmit for all or a portion of a state 's SIP established a 24

- month deadline for EPA to promulgate a Federal Implementation Plan (FIP) to address the outstanding SI P elements unless, prior to that time, the affected state s submit, and EPA approves, the requ ired SI Ps. However, the findings of failure to submit did not impose sanctions or set deadlines for imposing sanctions as described in section 179 of the CAA, because these findings do not pertain to the elements contained in the Title I part D plan for n onattainment areas as required under section 110(a)(2)( I ). Additionally , the findings of failure to submit for the infrastructure submittals is not a SI P call pursuant to section 110(k)(5). The findings that all or portions of a state 's submission are co mplete establish a 12

- month deadline for EPA to take action upon the complete SI P elements in accordance with section 110(k). This action does not address the requirements of 110(a) (2)(D)(i)(I)requirements for the 1997 ozone, 1997 PM2.5 NAAQS and 2006 PM2.5 NAAQS. Those requirements have been addressed b y s eparate actions issued by EPA: See April 25, 2005 Federal Register (70 FR 21147) for EPA’s Finding of Failure to Submit Section 110 State Implementation Plans for Interstate Transport for the Nationa l Ambient Air Quality Standar ds for 8

- Hour ozone and PM2.5. See January 24, 2008 Federal Register(73 FR 4109) for EPA’s approval of New York’s Clean Air Interstate Rule. See July

20, 2011 Federal Register (76 FR 43153) for EPA’s disapproval of the New York Interstate Transport Plan Revision for the 2006 24

- Hour PM2.5 NAAQS. On July 6, 2011, the EPA Administrator signed the Cross

- State Air Pollution Rule (CSAPR) to address 110(a)(2)(D)(i)(I) for these NAAQS. See CSAPR website at http://www.epa.gov/airquality /transport/index.html

. T he U.S. Circuit Court of Appeals for the District of Columbia stay ed CSAPR on December 30 , 2011 , temporaril y suspending implementation of the rule , and will leave the Clean Air Interstate Rule in place while the Court considers the merits of the challenges to the Cross

- State Rule.

**III. Scope of Infrastructure SIPs**  EPA is currentl y acting upon SI Ps that address the infrastructure requirements of CAA section 110( a)(1) and (2) for ozone and PM 2.5 NAAQS for various states across the country

. Commenters on EPA’s recent proposals for some states raised concerns about EPA statements that it was not addressing certain substantive issues in the context of acting on thos e infrastructure SI P submissions. 1 Those Commenters specificall y raised concerns involving

1 Se e Comments of Midwest Environmental Defense Center, dated May 31, 2011. Docket # EPA

- R05

- OAR

- 2007

- 1179 (adverse comments on proposals for three states in Region 5). EPA notes that these public comments on another proposal are n ot7

provisions in existing SIPs and with EPA’s statements in other proposals that it would address two issues separately

and not as part of actions on the infrastructur e SI P submissions: (i) existing provisions related to excess emissions during periods of start

- up, shutdown, or malfunction at sources, that may be contrary

to the CAA and EPA’s policies addressing such excess emissions (“SSM”); and (ii) existing provisio ns related to “director’s variance” or “director’s discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval b y EPA, that may be contrary to the CAA (“director’s discret ion”). EPA notes that there are two other substantive issues for which EPA likewise stated in other proposals that it would address the issues separately : (i) existing provisions for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that pertain to such programs (“minor source NSR[New Source Review]”); and (ii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended b y 72 FR 32526 (June 13, 2007) (“NSR Reform”). In light of the comments, EPA believes that its statements in various proposed actions on infrastructure SI Ps with respect to these four individual issues should b e explained in greater depth. It is important to emphasize that EPA is taking the same position with respect to these four substantive issues in this action on the infrastructure SIPs for the 1997 8

- hour ozone NAAQS from New Jersey

. EPA intended the stat ements in the other proposals concerning these four issues merel y to be informational, and to provide general notice of the potential existence of provisions within the existing SI Ps of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency ’s approval of the infrastructure SI P submission of a given state should be interpreted as a re

approval of certain t ypes of provisions that might exist buried in the larger existing SI P for such state. Thus, for example, EPA explicitly noted that the Agency

believes that some states may have existing SI P approved SSM provisions that are contrary to the CAA and EPA policy , but that “in this rulemaking, EP A is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director’s discretion, minor source NSR, and NSR Reform issues. EPA’s objective was to make clear that approval of an infrastructure SI P for these ozone and PM 2.5 NAAQS should not be construed as explicit or implicit re

- approval of an y existing provisions that relate to these four substantive issues. EPA is reiterating that position in this action on the infrastructure SIP for New Jersey. Unfortunatel y, the Commenters and oth ers evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issues in the context of the infrastructure SI Ps. This was not EPA’s intention. To the contrary , EPA onl y meant to convey its awareness of the potential

relevan t to this rulemaking and do not have to be directly addressed in this rulemaking. EPA will respond to these comments in the appropriate rulemaking action to which they apply.8

for certain ty

pes of deficiencies in existing SI Ps, and to prevent any misun derstanding that it was reapproving an y such existing provisions. EPA’s intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SI Ps and that these issues may be dealt with separatel y, outside the context of acting on the infrastructure SI P submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SI P submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidentl y resulting from EPA’s statements in those other proposals, however, we want to explain more fully the Agency ’s reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separatel y from actions on infrastructure SIP submissions. The requirement for the SI P submissions at issue arises out of CAA section 110(a )(1). That provision requires that states must make a SI P submission “within 3 y ears (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any

revision thereof)” and that these SI Ps are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submiss ions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular t ype of SI P submission designed to address basic structural requirements of a SIP from other t ypes of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submi ssions required to address the visibility

protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific t yp es of SIP submissions that address othe r specific matters. Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SI Ps, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are faciall y ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variet y of disparate provisions, some of which pertain to required legal authorit y, some of which perta in to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions. 2 Some of the elements of section 110(a)(2) are relatively

straightforward, but others clearl y require interpretation by EPA thr ough rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS. 3

2 For example, section 110(a)(2)(E) provides that states must provide assuran ces that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a substantive program to addres s certain sources as required by part C of the CAA; section 110(a)(2)(G) provides that states must have both legal authority to address emergencies and substantive contingency plans in the event of such an emergency.

3 For example, section 110(a)(2)(D)(i) requires EPA to be sure that each state’s SIP contains adequate provisions to prevent significant contribution to nonattainment of the NAAQS in other states. This provision contains numerous terms that require substantial rulemaking by EPA in order to determine such basic points as what constitutes significant contribution. See “ Rule To9

Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SI P requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1). 4 This illustrate s that EPA must determine which provisions of section 110(a)(2) may be applicable for a given infrastructure SIP submission. Similarly , EPA has previously decided that it could take action on different parts of the larger, general “infrastructure SI P” for a given NAAQS without concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency bifurcated the action on these latter “interstate transport” provisions within section 110(a)(2) and worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on different tracks with different schedules. 5 This illustrates that EPA may

conclude that subdividing the applicable requirements of section 110(a)(2) into separat e SI P actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, bey ond a mere submission addressing basic structural aspects of the state’s implementation plans. Finally , EPA notes that not every element o f section 110(a)(2) would be relevant, or as relevant, or relevant in the same way , for each new or revised NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very

different than what might be necessary for a different pollutant. Thus, the content of an infrastructure SI P submission to meet this element from a state might be very different for an entirel y new NAAQ S, versus a minor revision to an existing NAAQS. 6 Similarly , EPA notes that other ty pes of SI P submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elem ents for other SI P submissions. For example, nonattainment SI Ps required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By

contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C, i.e. , the PSD requirements applicable in attainment areas. Nonattainment SI Ps required by part D also would not need to address the requirements of section 110(a)(2)(G) with respect to eme rgency episodes, as such requirements would not be limited to nonattainment areas. As this example illustrates, each t ype of SIP submission may

implicate some subsections of section 110(a)(2) and not others.

Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162 (May 12, 2005) ( defining, among other things, the phrase “contrib ute significantly to nonattainment”).

4 See Id. , 70 FR 25162, at 63

– 65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). 5 EP A issued separate guidance to states with respect t o SIP submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 1997 PM 2.5 NAAQS. See “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8

- Hour Ozone and PM2.5 N ational Ambient Air Quality Standards,” from William T. Harnett, Director Air Quality Policy Division OAQPS, to Regional Air Division Director, Regions I

- X, dated August 15, 2006.

6 For example, implementation of the 1997 PM 2.5 NAAQS required the deploym ent of a system of new monitors to measure am bient levels of that new indicator species for the new NAAQS.10

Given the potential for ambiguity of the statutory

language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SI Ps for a given NAAQS. Because of the inherent ambiguity of the list of requirements in sec tion 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SI Ps against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purp ose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way . EPA elected to use guidance to make recommendations for infrastructure SI Ps for these ozone and PM 2.5 NAAQS. On October 2, 2007, EP A issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8

- hour ozone NAAQS and the 1997 PM 2.5 NAAQS. 7 Within this guidance document, EPA described the dut y of states to make these submissions to meet what the Agen cy

characterized as the “infrastructure” elements for SI Ps, which it further described as the “basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards.” 8 As further identification of these basic structural SI P requirements, “attachment A” to the guidance document included a short description of the various elements of section 110(a)(2) and additional information about the ty pes of issues that EPA considered germane in the conte xt of such infrastructure SI Ps. EPA emphasized that the description of the basic requirements listed on attachment A was not intended “to constitute an interpretation of” the requirements, and was merely a “brief description of the required elements.” 9 E PA also stated its belief that with one exception, these requirements were “relativel y self explanatory, and past experience with SIPs for other NAAQS should enable States to meet these requirements with assistance from EPA Regions.” 10 However, for the one exception to that general assumption ( i.e. , how states should proceed with respect to the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS), EPA gave much more specific recommendations. But for other infrastructure SI P submittals, and for ce rtain elements of the submittals for the 1997 PM 2.5 NAAQS, EPA assumed that each State would work with its corresponding EPA regional office to refine the scope of a State’s submittal based on an assessment of how the requirements of section 110(a)(2) shou ld reasonably appl y to the basic structure of the State’s implementation plans for the NAAQS in question. On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SI Ps for the 2006 PM 2.5 NAAQS. 11 Inthe 2009 Guidance, EPA addressed a

7 See “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8

- hour Ozone and PM2.5 National Ambient Air Quality Standards ,” from William T. Harnett, Director Air Quality Policy Division, to Air Division Directors, Regions I

– X, dated October 2, 2007 (the “2007 Guidance”). 8 Id. , at page 2. 9 Id. , at attachment A, page 1. 10 Id. , at page 4. In retrospect, the concerns ra ised by commenters with respect to EPA’s approach to some substantive issues indicates that the statute is not so “self explanatory,” and indeed is sufficiently ambiguous that EPA needs to interpret it in order to explain why these substantive issues do no t need to be addressed in the context of infrastructure SIPs and may be addressed at other times and by other means.
11 See “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24

- Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS),” from William T, Harnett, Director Air Quality Policy Division, to Regional Air Division Directors, Regions I

- X, dated September 25, 2009 (the “2009 Guidance”).11

number of additional issues that were not germane to the infrastructure SI Ps for the 1997 8

- hour ozone and 1997 PM 2.5 NAAQS, but were germane to these SI P submissions for the 2006 PM 2.5 NAAQS (e.g., the requirements of sec tion 110(a)(2)(D)(i) that EPA had bifurcated from the other infrastructure elements for those specific 1997 ozone and PM 2.5 NAAQS). Significantl y, neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director’s discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SI Ps, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director’s discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA did not indicate to s tates that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in existing SI P provisions in the context of the infrastructure SI Ps for these NAAQS. Instead, EPA’s 2007 Guidance merel y indicated its belief that the states should make submissions in which they

established that they

have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, no twithstanding that there may be potential deficiencies within the existing SI P. Thus, EPA’s proposals for other states mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as re quired by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SI P problems as separate from the pending infrastructure SI P actions. The same holds true for this action on the infrastructure SI Ps for New Jersey

. EPA believes that this approach to the infrastructure SI P requirement is reasonable because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an exis ting SI P merel y for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SI Ps have grown by accretion over the decades as statutory and regulatory requirements under th e CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary , EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and t o focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA’s 2007 Guidance specificall y directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence of relevant provisions in existing SI Ps. Finally , EPA believes that its approach is a reasonable reading of section 110 (a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate12

tailored action, depending upon the nature and severity of the alleged SI P deficiency . Section 110(k)(5) authorizes EPA to issue a “SI P call” whenever the Agency determines that a state’s SI P is substantially

inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to compl y with the CAA. 12 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 13 Significantly , EPA’s determination that an action on the infrastructure SIP is not the appropriate time and place to address a ll potential existing SI P problems does not preclude the Agency ’s subsequent reliance on provisions in section 110(a)(2) as part of the basis for action at a later time. For example, although it may

not be appropriate to require a state to eliminate all e xisting inappropriate director’s discretion provisions in the course of acting on the infrastructure SI P, EPA believes that section 110(a)(2)(A) may be among the statutory

bases that the Agency

cites in the course of addressing the issue in a subsequent ac tion. 14

**I V**  **. What did**  **New York**  **Submit?** EPA is acting on three New York SIP submittals, dated December 13, 2007, October 2, 2008 and March 15, 2010, which address the s ection 110 infrastructure requirements for the three NAAQS: the 1997 8

- hour ozone NAA QS, the 1997 annual and 24

- hour PM 2.5 NAAQS, and the 2006 24

- hour PM 2.5 NAAQS. December 13, 2007 SIP submission New York’s Section 110 infrastructure submittal was submitted by the New York State Department of Environmental Conservation (NYSDEC) on Dece mber 13, 2007 and addressed the 1997 ozone NAAQS. Effective April 28, 2008, the submittal was determined to be complete for all elements except 110(a)(2)(C). 73 FR 16205 (March 27, 2008). New York’s December 2007 Section 110 submittal demonstrates how the State, where applicable, has a plan in place that meets the requirements of Section 110 for the 1997 8

- hour ozone NAAQS. This plan references the current New York Air Quality SIP, the New York Codes of Rules and Regulations (NYCRR), the New York Enviro nmental Conservation L aw (ECL) and the New York Public Officer’s Law (POL). The NYCRR, ECLand POLreferenced in the submittal are publicly available. New York’s air pollution control regulations that have been previously approved b y

12 EP A has recently issued a SIP call to rectify a specific SIP deficiency related to the SSM issue. See, “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision,” 74 FR 21639 (April 18, 2011).

13 EP A has recently utilized this authority to correct errors in past ac tions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting

- Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EP A has previously used its authority under CAA 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, C alifornia, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

14 EP A has recently disapproved a SIP submission from Colorado on the ground s that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See 75 FR 42342 , 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions).13

EPA and incorporated into the New York SI P can be found at 40 CFR 52.1679 and are posted on the Internet at: http://www.epa.gov/region02/air/sip/ny _reg.htm. October 2, 2008 SIP submission New York’s s ection 110 infrastructure submittal for the 1997 PM2.5 NAAQS was submitted by the NYSDEC on October 2, 2008, and the submittal was deemed complete April 2, 2009. March 15, 2010 SIP submission New York’s s ection 110 infrastructure submittal for the 2006 PM2.5 24

- hour NAAQS was submitted by

the NYSDEC on March 15, 2010, and the s ubmittal was deemed complete September 15, 2010.

**V. What are the required elements under Section 110(a)(1) and (2)?**  Section 110(a)(1) provides the procedural and timing r equirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for "infrastructure" SI P requirements related to a newly established or revised NAAQS. These requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenan ce of the NAAQS. The requirements that are the subject of this action are listed below, with their corresponding CAA subsection, and in EPA's October 2, 2007, memorandum entitled "Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1 997 8

- Hour Ozone and PM2.5 National Ambient Air Quality Standards." Some of these requirements are not part of the infrastructure SIP, but due as part of the states nonattainment SIP, but are listed below for completeness. 110(a)(2)(A) : Emission limits and other control measures. 110(a)(2)(B) : Ambient air quality monitoring/data sy stem. 110(a)(2)(C) : Program for enforcement of control measures. 110(a)(2)(D) : Interstate transport. 110(a)(2)(E) : Adequate resources. 110(a)(2)(F) : Stationary

source moni toring and reporting

. 110(a)(2)(G) : Emergency power. 110(a)(2)(H) : Future SIP revisions. 110(a)(2)( I ) : N onattainment area plan and plan revisions under part D 110(a)(2)(J) : Consultation with Government officials, public notification, PSD and visibility protection. 110(a)(2)(K) : Air quality modeling/data. 110(a)(2)(l) : Permitting Fees. 110(a)(2)(M) : C onsultation/participation by affected local entities.14

**V I**  **. How do the New**  **York Infrastructure Submittal**  **s Meet the Requirements under Section**  **110(a)( 1) and (2) for the 1997 8** 
**- hour ozone NAAQ**  **S , the 1997 and 2006 PM2.5 NAAQS?**  New York’s three section 110 submittal s demonstrate how the State, where applicable, has a plan in place that meets the requirements of section 110 for the 1997 8

- hour ozone NAAQS. This plan references the current New York Air Quality SI P, the New York Codes of Rules and Regulations (NYCRR), the New York Environmental Conservation Law (ECL ) and the New York Public Officer’s Law (POL) and shows how the provisions of these laws and r egulations meet the appropriate section 110 requirements as outlined in EPA's October 2, 2007 guidance. The N YSDEC s ubmittal s are certification document s which certif y compliance with section 110(a) ( 1) and (2) through its infrastructure SI P submittal s and focuses on the sections that EPA made findings for in October 2008. Unless specifically

identified in a particular section, EPA’s evaluation will apply to ozone and both the annual and 24 hour PM2.5 NAAQS s
. The specific sections of 110 are listed below, followed by a summary of how the N YSDEC submission s meet these requirements and EPA’s evaluation of the New York submittals. The reader is referred to the N YSDEC submissions and the New York Statutes annotated and New York’s Administrative Code, for New York ’s complete explanation of how New York satisfies the section 110 requirements. The NYCRR, ECLand POLreferenced in the submittal are publicly available. New York’s air pollution control regulations that have been previously approved b y EPA and inco rporated into the New York SI P can be found at 40 CFR 52.1670 and are posted on the Internet at: http://www.epa.gov/region02/air/sip/ny _reg.htm

. **A. Emission limits and other control measures** 

**– Section 110(a)(2)(A)**  Section 110(a)(2)(A) requires SI Ps to include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters. EPA notes that the specific nonattainment area plan re quirements of section 110(a)(2)(I) are subject to the timing requirement of section 172, not the timing requirement of section 110(a)(1), and also that SI Ps to meet this section are not covered b y the Consent Decree. State Submittal: New York’s ECLsectio n 19

- 0301, provides the NYSDEC with power to formulate, adopt and promulgate, amend and repeal codes and rules and regulations for preventing, controlling and prohibiting air pollution in such areas of the State as shall or may be affected by

air pollution

. New Yo rk indicates the actual emission limits required as part of the 8

- hour ozone SI P are not required to be part of the 1 10(a) Infrastructure SIP , but are to be found in the respective pollutant specific SI P revisions

.15

EP A Evaluation: EPA has revie wed the authority provided b y ECL section 19

- 0301 and is satisfied that th is provision provide s N YSDEC with the ability to adopt and enforce regulations, control measures including emission limits and compliance schedules. While N ew York has not provided the actual control measures and emission limits as part of the Infrastructure SI P, it has provided the control measures and emission limits as part of its pollutant specific SI P revisions

. On July 23, 2010 (75 FR 43066), EPA conditionally approved New Yor

k’s statewide RACT and RACM SI P revision. EPA proposed to approve the last control measures N ew York committed to adopt as part of its RACT SI P on April 10, 2013 ( 7 8 FR 21302 )

. All the control measures along with the emission limitations that New York id entified as necessary for attaining the 8

- hour o zone standard have been adopted b y the State, submitted as SIP revisions and approved as SI P revisions by

EPA. The complete list of EPA approved New York rules can be found at 40 CFR 52.16 70

. On April 29, 20 08, the Department submitted the attainment SI P for the 1997 annual PM2;5 NAAQS. This SI P contains the strategies and measures that will be implemented in New York so that the 1997 annual NAAQS will be met by the 2010 deadline. In the PM2.5 SI P, a number o f state programs and regulations were identified to be implemented that will provide the necessary enforceable emission limitations and other control measures for PM2.5 in New York State. Other programs and regulations that address PM10 or PM generall y are alread y i n effect. Although not specific to PM2.5, these programs and regulations will reduce the ambient levels of PM2.5 by reducing its emissions along with the emissions of PM10 , PM and its precursors, resulting in the enforceable emission limits and o ther control measures necessary to address the 2006 PM2.5 NAAQS
**B. Am**  **bient air quality monitoring, compilation, data**  **analysis**

**– Section 110 (a)(2)(B)**  Section 110(a)(2)(B) requires SI Ps to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and anal yz ing ambient air quality data, and making these data available to EPA upon request. State Submittal: New Yo rk, under its authority provided in ECL

subsection 19

- 0305(2)(d), operates and maintains a netw ork of ambient air quality monitors used to sample the degree of air pollution throughout the State and submits the data collected to EP A. New Yo rk has submitted annual air monitoring network plans which have been approved b y EP A.
EP A Evaluation: EP A has reviewed the authority provided b y EC L subsection 19

- 0305(2)(d) and is satisfied that New Yo rk has adequate authority to conduct a monitoring program and report the results that fulfills the requirements of section 1 10(a)(2)(B) for both the 8

- hr ozone and the PM2.5 NAAQS

. New Yo rk’ s latest Monitoring Plan was submitted on July 2, 2012 and EP

A approved New Yo rk ’s monitoring plan for all pollutants including ozone and PM2.5 on October 18, 2012 and found no deficiencies. The State is monitoring ozone and PM 2.5 at appropriate locations throughout the16

Stat e using EP

A approved federal reference methods or equivalent monitors. The Monitoring Plan included planned changes to the monitoring sites. New Yo rk has been submitting the air quality data to EP

A’ s A ir Qu ality

S ys tem (AQS ) data base on a quarterl y basis and makes this data, as well as various reports, available on its website http://www .dec.ny .gov/airmon/index.php on a real time basis. EP

A has determined that New Yo rk has satisfied the section 1 10(a)(2)(B ) requirements for both ozone and PM2.5 NAAQSs.
**C. E**  **nforcement and s**  **tationary s**  **ource p**  **ermitting**
**- Section 110(a)(2)(C**  **)** Section 110(a)(2)(C) requires states to include a program providing for enforcement of all SIP measures and the regulation of construct ion of new or modified stationary sources to meet P revention of S ignificant D eterioration (PSD) and nonattainment New Source Review requirements. State Submittal: The NYSDEC is authorized by ECL section 19

- 0305, to enforce the codes, rules and regulations of the NYCRR. The minor source permitting and enforcement programs operate under Title 6 NYCRR Part 201, “Permits and Registrations”. EP A proposes to find that the State has adequate authority and regulations to insure that SIP approved control measures are enforced for the 1997 8

- hour ozone and the 1997 PM2.5 and 2006 PM2.5 NAAQS. On March 3, 2009, the State of New Yo rk, through the NYSDEC, submitted to EP A Region 2 revisions to the New Yo rk SI P. The submittal consists of revisions to three regulat ions. The aff ected regulations are: 6 NYCRR Part 231, “New Source Review for New and Modified Facilities”; 6 NYCRR Part 200, “General Provisions”; and 6 NYCRR Part 201, “Permits and Certificates”. The purpose of these revisions were to revise the New Yo r k S tate PSD program regulations and to update the existing New Yo rk State nonattainment regulations consistent with changes to the Federal NSR regulations published on December 31, 2002 (67 FR 80186). On November 17, 2010 (75 FR 70140), EP A approved the N ew Yo rk PSD program.
EP A Evaluation: EP A believes that the State has adequate authorit y and regulations to ensure that, SI P

- approved control measures are enforced. EP A also finds that based on the approval of New Yo rk’ s PSD program, New Yo rk has the authority to regulate the construction of new or modified stationary sources to meet the PSD program requirements. EP A has determined that New Yo rk has met the requirements of section 1 10(a)(2)(C) and (J) of the CAA with respect to the 1997 8

- hour ozone and the 1997 and 2006 PM 2.5 NAAQS.
**D. Interstate transport** 

**– Section 110(a)(2)(D)** 

**- Section 110(a)(2)(D)(i)**  Section 110(a)(2)(D) (i) requires SI Ps to address four separate elements. Section 110(a)(2)(D)(i)(I) provides that each state’s SI P must include prov isions prohibiting an y source or other t ype of emissions activity in one state from contributing significantly to (1)17

nonattainment, or (2) interfering with maintenance of the NAAQS in another state (referred to as prongs 1 and 2)

. Section 110(a)(2)(D)(i) (II) provides that each state’s SI P must include provisions prohibiting any source or other t ype of emissions activity in one state emitting any pollutants in amounts which will interfer e with measures required to (3) prevent significant deterioration of a ir quality or to (4) protect visibility in another state (referred to as prongs 3 and 4)

. **Prongs 1 and 2** This action does not act on the requirements of 1 10(a)(2)(D)(i)(I ), prongs 1 and 2, for the 1997 8

- hour ozone NAAQS and the 1997 PM2.5 NAAQS , becaus e they were addressed b y previous EPA actions. See 72 FR 55666, October 1, 2007. For 2006 24

- hour PM2.5, EPA disapproved New Jersey ’s SIP for prongs 1 and 2 on July 20, 2011, 76 FR 43153. **Prong 3** State submittal: As discussed previousl y under (C ) (Program for enforcement of control measures), on November 17, 2010 (75 FR 70140), EP A approved the New Yo rk PSD program. EPA Analy sis: A state's infrastructure SIPsubmittal can be considered for approvability with respect to prong 3 if EP A has issue d final approval of that state's PSD SI P or, alternatively , has issued final approval of a SIP that EP A has otherwise found adequate to prohibit interference with other states' measures to prevent significant deterioration of air quality . Therefore, EP

A h as determined that New Yo rk's 1 10(a) submissions for prong 3 of 1 10(a)(2)(D)(i)(II) is approvable because New Yo rk has a federall y approved PSD program. **Prong 4** New York has met its obligations pursuant to section 110(a)(2)(D)(i)(II) for visibility prot ection for all three NAAQS through its Regional Haze SIP submittals, which were approved b y EPA on August 28, 2012 (77 FR 51915). The regional haze rule specificall y requires that a state participating in a regional planning process include all measures ne eded to achieve its apportionment of emission reduction obligations agreed upon through that process. Thus, New York’s approved Regional Haze SI P will ensure that emissions from sources within the State are not interfering with measures to protect visibil ity in other states. Therefore, EPA proposes to find for 8

- hr ozone and PM2.5 NAAQS that New York satisfies the section 110(a)(2)(D)(i)(II) requirement for visibility

.

**- Section 110(a)(2)(D)(ii)**  **Interstate and International transport provisions** : Section 110(a)(2)(D)(ii) requires SI Ps to include provisions insuring compliance with the applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement). Specificall y, section 126(a) requires new or modified major s ources to notify18

neighboring states of potential impacts from the source. State Submittal: Regarding section 110(a)(2)(D)(ii), which relates to interstate and international pollution abatement, as noted above, on November 17, 2010 (75 FR 70140), EPA app roved the New York PSD program which is consistent with 40 CFR 51.166(q)(2)(iv), and requires a source to notify air agencies whose lands may be affected by

emissions from that source (see 6 NYCRR sections 231

- 7.4(f) and 8.5(f)). New York has no pending o bligations under section 115 or 126(b) of the CAA. EPA Analy sis: New York has no pending obligations under section 115 or 126(b) of the CAA. EPA has determined that New York’s submissions for infrastructure element 110(a)(2)(D)(ii) are approvable.
**E. A**  **dequate resources**
**- Section 110(a)(2)(E)**  **:** Section 110(a)(2)(E) requires : (i) states to provide for adequate personnel, funding, and legal authority under state law to carry

out its SI P. (ii) that the state compl y with the requirements section 128 respec ting state boards and conflict of interest , and (iii) necessary assurances that, where the state has relied on a local or regional government, agency , or instrumentality for the implementation of any

plan provision, the state has responsibility for ensurin g adequate implementation of such plan provision.” State Submittal: New York has adequate authority , under ECL sections 19

- 0301, 0303 and 0305, to carry out its SI P obligations with respect to the 1997 ozone and 1997 and 2006 PM2.5 NAAQS. New York receiv es sections 103 and 105 grant funds along with required State

- matching funds to provide funding necessary

to carry out its SI P requirements. EPA Evaluation: EP A has determined that New Yo rk has sufficient resources to meet the requirements of section 11 0(a)(2)(E)(i) for the 1997 8

- hr ozone and 1997 and 2006 PM2.5 NAAQS. Section 1 10(a)(2(e)(ii), requires compliance with section 128 which addre sses requirements to insure that boards or persons approving permits or enforcement orders do not have any confli cts of interest. New Yo rk does not have a state board that approves permits or enforcement orders under the CAA. Instead, permits and enforcement orders are approved b y the State's Commissioner of Environmental Conservation. Thus, the requirements of sub section 128(a)(1) are not applicable to New Yo rk. New Yo rk is subject to the requirements of section 128(a)(2). In its SI P submission New Yo rk cited POL sections 74(2) and 74(3)(e) which address conflict of interest. However, after further discussion w ith NYSDEC, it is more relevant to cite POL section 73

- a, “Financial disclosure” and 19 NYCRR 937, “Access T o Publicly

A vailable Records,” as satisfying the section 128(a)(2) requirement.19

EP A has determined that New Yo rk must submit POL section 73

- a and 19 NYCRR 937 for approval as part of the SIP in order to fully

satisfy the requirements of section 1 10(a)(2)(E)(ii) for 1997 8

- hour ozone and PM2.5 NAAQS, provided the State submits Section 1 10(a)(2(e)(iii) requires states to have the necessary assur ances in place with local or regional governments that may be delegated tasks associated with implementation of the SIP. The NYSDEC has delegation authority for inspection and enforcement ef forts of various regulations under the general enforcement powers provided in ECL section 19

- 0305. While New Yo rk has the authority to delegate responsibilities to county or local governments to implement certain SIP

responsibilities, the information provided in both infrastructure SI P submittals does not identify the specific organizations that will participate in developing, implementing, and enforcing the plan and the responsibilities of such organizations. EP A proposes to conditionally approve the infrastructure SIP with regard to the requirements of section 1 10(a) (2)(E)(iii). The State must identify the count y or local governments or entities that participate in the SIP

planning ef

forts, identify

the county

or local governments or entities that have been delegated responsibilities to implement or enforce portions o f the SI P, and provide copies of the delegation orders or memoranda of understanding (MOUs) between the State and the county

or local governments or entities. EP A has determined that New Yo rk must submit this information in order to fully satisfy the requi rements of section 1 10(a)(2)(E)(iii) for the 1997 8

- hour ozone and 1997 and 2006 PM2.5 NAAQS.
**F. Stationary source**  **emissions monitoring**  **and reporting :**  **Section 110(a)(2)(F)** Section 110(a)(2)(F) requires states to establish a sy stem to : i) monitor emiss ions from stationary sources , ii) have sources prepare periodic emission reports , and iii) report emissions

. State Submittal: The NYSDEC has the authority pursuant to ECL

subsection 19

- 031 1(3)(c) to require emissions monitoring, recordkeeping and reportin g of stationary sources before an operating permit is issued or renewed. NYSDEC has adopted regulations to implement the federal requirements for stationary source emissions monitoring, reporting and recordkeeping in 6 NYCRR Part 201

- 6.4(b) and (c). The NYSDEC adopted 6 NYCRR Part 202, “Emission Ve rification,” to require emissions reports from stationary

sources. Further 6 NYCRR Part 616, Access to Records, specificall y allows emission information to be made available to the public.
EP A Evaluation: Base d on the authorit y pursuant to ECLsubsection 19

- 0311(3)(c) and the adoption of the Part 202, specificall y subpart 202

- 2, “Emission Statements,” EPA has determined that New York has met the requirements of section 110(a)(2)(F) for the 1997 8

- hr ozone and 1 997 and 2006 PM2.5 NAAQS.20

**G. Emergency power**  **s and contingency p lans** 
**- Section 110 (a)(2)(G)**  Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SI Ps. State Submittal: New Yo rk has the authority to address section 1 10(a)(2))G) pursuant to ECL, Articles 3 and 19, which are implemented through 6 NYCRR Part 207, “Control Measures for Air Pollution Episodes.” Among other things, 6 NYCRR Part 207 requires persons who own a significant air contamination source to submit a proposed episode action plan to the NYSDEC Commissioner, and enable the Commissioner to designate air pollution episodes which trigger the action plans. Pursuant to Part 207.3(a), the NYSDEC Commissioner shall have on file and make available the criteria used in determining the need to designate episodes. The NYSDEC maintains an “Episode Action Plan” with guidelin es and protocols/criteria to be followed in case of an air pollution emergency

. The NYSDEC's Episode Action Plan has been updated to reflect the PM2.5 Significant Harm Levels (SHL s) proposed by EP A on January

15, 2009 along with revised values for ozone ep isodes.
EP A Evaluation: For PM2.5, EP

A's guidance dated September 25, 2009 provides clarification that states that have air quality

control regions identified as either Priority I , Priorit y IA

or Priority

II b y the “Prevention of Air Pollution Emergenc y Episodes” rules at 40 CFR 51.150 must develop emergency episode contingency plans. States are required to develop emergency episode plans for an y area that has monitored and recorded 24

- hour PM2.5 levels greater than 140.4 μg/m3 since 2006. A state that has never exceeded this level since 2006 is considered to be Priorit y III. 40 CFR 51.150(f). In accordance with the guidance, a Priorit y III area may certify that it has appropriate general emergency powers to address PM2.5

- related episodes, and is not required to adopt specific emergency episode plans at this time, given the existing monitored levels. Since 2006, air

- qualit y m onitors in New Yo rk show that PM2.5 levels have been below the 140.5 μg/m3 threshold. Based on air quality data, New Yo rk shoul d be classified as a Priority I II region and, therefore, emergency episode plans for PM2.5 are not required.
EP A has determined that New Yo rk has met the requirements of section 1 10(a)(2)(G) for the 1997 8

- hour ozone and the 1997 and 2006 PM2.5 standard s. **H. Future SIP revisions** 
**- Section 110(a)(2)(H)**  Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining NAAQS, or in response to an EPA findi ng that the SI P is substantially inadequate. State Submittal: Revisions to the New York SI P are authorized by Article 19 and sections 3

- 0301, 19

- 0103, 19

-21

0301, 19

- 0303 and 19

- 0305 of the ECL . Article 19 of the ECLwas adopted to protect New York's air resources from pollution and to put into effect the policy of the State to maintain a reasonable degree of purity of the air resources, consistent with the public health and welfare and the industrial development of the State. NYSDEC is granted specific p owers and duties, including the power to promulgate regulations for preventing, controlling, or prohibiting air pollution. NYSDEC also has the specific authority to regulate motor vehicle exhaust and approve air contaminant control sy stems as well as regu late fuels. Section 71

- 2103 provides general enforcement authority for the New York State air regulations. Section 71

- 2105 provides criminal enforcement authority

. EPA Evaluation: New York has the authority to revise SIPs and provide for enforcement in r esponse to changes in the NAAQS and improve methods for attaining the NAAQS. EPA has determined that the State has adequate authorit y to develop and implement plans and programs that fulfill the requirements of section 110(a)(2)(H) for the 1997 8

- hr ozone and 1997 and 2006 PM2.5 NAAQS.
**I. State Implementation Plan revisions for n**  **ew n**  **onattainment a**  **reas**
**– Section**  **110(a)(2)(I)** Section 110(a)(2)(I) requires that each nonattainment area meet the applicable requirements of Part D. State Submittal : The N YSDEC has in the past submitted S IP revisions for an y change in the N AAQS , including the recommendations for nonattainment area designation. EPA Evaluation: EPA has not addressed Section 110(a)(2)(I) in its recent infrastructure SI P guidance because Part D SI Ps are due on a different schedule than the infrastructure SIP submittal schedule. (See, e.g., the infrastructure SI P guidance for the revised lead standard, 73 FR 66964, 67034, n. 113, Nov. 12, 2008, and the infrastructure SI P guidance for the revised NO2 st andards, 75 FR 6474, 6523, n. 27, Feb. 9, 2010.) Therefore, this proposal does not address Section 110(a)(2)(I).
New York has submitted for i t s ozone nonattainment areas RACT Plan s , RFP Plan s and Attainment Demonstration s for the 1997 8

- hour ozone stan dard. New York has also submitted a PM2.5 SI P revision which EPA is currentl y reviewing and will be taking rulemaking action on. EPA has alread y take n action on 8

- hr ozone requirements for Part D nonattainment plans through separate rulemaking s
. **J. Cons**  **ultation with government officials , public notification, PSD, and Visibility** 
**-** Section 110(a)(2)(J): **J.1. Consultation with government officials:** Section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to22

section 121 relating to con sultation

. State Submittal: Section 121 requires a process for consultation with local governments and Federal Land Managers carrying out NAAQS implement ation requirements. EP A finds that the 1 10(a) submittals from New Yo rk, and the cited authorit y of section 3

- 0303 of the ECL , meet the requirements of section 1 10(a)(2)(J) for consultation with government of ficials.
**J 2.**  **Public notification:** Section 110( a)(2)(J) further requires s t ates to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. State Submittal: The NYSDEC’ s website, at http://www .dec.nv .qov/chemical/34985.htm l contains an Air Quality Index (AQI) for reporting dail y air quality to the public. It describes how clean or polluted the air is, and what associated health effects might be a concern. It was created as a way to correlate levels of dif

ferent pollutants to one scale; the higher the AQI value, the greater the health concern. When levels of ozone and/or fine particles are expected to exceed an AQIvalue of 100, an Air Quality

Health Advisory

is issued alerting sensitive groups to take the necessary precautions. The NYSDEC, in cooperation with the New Yo rk State Department of Health, posts warnings on the above

- referenced website and issues press releases to local media outlets if dangerous conditions are expected to occur. The Air Quality Forecast displays the predicted AQI value for eight regions in New Yo rk State. It also displays the observed values for the previous day

. Air quality

measurements from New Yo rk's statewide continuous monitoring network are updated hourl y where available. Parameters mo nitored include ozone, fine particulate, carbon monoxide, sulfur dioxide, nitrogen oxides, methane/nonmethane h ydrocarbons, and meteorological data.

EP A Evaluation: The N YSDEC has procedures in place to notify the public when air quality standards deteri or ate and exceed the NAAQS. Itmaintains a web site which provides information on current air quality status, air qualit y forecasts, monitoring information, reports and pert i n e nt information related to air quality readings

. N YSDEC participates with surro unding states in submitting and compiling air qualit y data and making this information available to press, news outlets, state websites and through the use of a listserv

. EP A has determined that New Yo rk has adequate procedures for notifying the public of air qualit y concerns and disseminating information on way s to avoid health problems and reduce e xposure when necessary

. **J 3.**  **PSD and visibility protection:** Section 110(a)(2)(J) also require s s tates to meet applicable requirements of Part C related to prev ention of significant deterioration (PSD) and visibility protection.23

State Submittal: On March 3, 2009, the State of New Yo rk, through the NYSDEC, submitted to EP A Region 2 revisions to the New Yo rk SI P. The submittal consists of revisions to three r egulations. The aff ected regulations are: 6 NYCRR Part 231, “New Source Review for New and Modified Facilities”; 6 NYCRR Part 200, “General Provisions”; and 6 NYCRR Part 201, “Permits and Certificates”. The purpose of these revisions were to revise the N ew Yo rk State PSD program regulations and to update the existing New Yo rk State nonattainment regulations consistent with changes to the Federal NSR regulations published on December 31, 2002 (67 FR 80186). For visibility

improvement, the N YSDEC has addre ss ed the necessary requirements in the Regional Haze State Implementation Plan
. EP A Evaluation: On November 17, 2010 (75 FR 70140), EP A approved the New Yo rk PSD program, as discussed under (C) (program for enforcement of control measures). The approvabi lity of a state's PSD program in its entiret y is essential to the approvability of the infrastructure SI P with respect to section 1 10(a)(2)(J). Wi th respect to the visibility component of section 11 0(a)(2)(J), we reiterate the statutory requirement provid ing, in relevant part, that each plan must meet the “applicable requirements” of part C (of Title I of the Act) relating to visibility protection. W

e note that the other part C requirements specified in section 11 0(a)(2)(J) (applicable requirements relati ng to prevention of significant deterioration of air qualit y) specifically relate to the 1997 and 2006 NAAQS, as well as to other pollutants regulated under the CAA, and a state must be able to implement those requirements with respect to a new or revised NAAQS when promulgated. In contrast to the PSD program, the visibility protection requirements are not directly related to the promulgation of , or revision to, these NAAQS. While the SIP must independently meet the visibility protection requirements of p art C by virtue of the specific SIP requirements in sections 169A and 169B of the Act, EP

A believes that the visibility protection requirements are not “applicable requirements” within the meaning of section 11 0(a)(2)(J) and that the SIP is not required to be revised with respect to visibility protection merel y due to promulgation of, or revision to, these NAAQS. Regardless, N YSDEC submitted and EP A has approved its Regional Haze SI P ( August 28, 2012, 77 FR 51915) as part of the SI P

. **K. Air quality**  **modeling and reporting** 
**- Section 110(a)(2)(K)**  Section 110(a)(2)(K) requires that SI Ps provide for performing air quality modeling for predicting effects on air quality of emissions from any

NAAQS pollutant and submission of such data to EPA upon request.
State S ubmittal: Authorized pursuant to sections 3

- 0301, 19

- 0103, 19

- 0301, 19

- 0303 and 19

- 0305 of the ECL, NYSDEC performs modeling as necessary to assess the degree of pollution in New Yo rk State.24

The NYSDEC certifies that the air qualit y modeling and anal ys is used in its SI Ps complies with EP A's guidance on the use of models in attainment demonstrations, and commits to continue to use air qualit y models in accordance with EP A's approved modeling guidance and to submit data to EP A if requested.
EP A Evaluation : N YSDEC has submitted the 1997 8

- hour ozone attainment demonstration supported b y photochemical modeling. This regional modeling effort was performed by the Ozone Transport Commission (OTC) on behalf of the member states including New York

. NYSDEC parti cipated, as a member of the OTC, in the various workgroups and the oversight committee responsible for the regional modeling effort

. N YSDEC also submitted modeling for the PM2.5 annual standard which EPA is in the process of preparing a proposed rulemakin g. New York is attaining the PM2.5 24

- hour standard and EPA made a final Clean Data Determination on December 31, 2012 (77 FR 768867). When this action is finalized, the requirement for an attainment demonstration for the 24

- hour standard will be suspend ed for as long as the standard is being attained. EP A has determined that the State has adequate authorit y to develop and implement plans and programs that fulfill the requirements of section 1 10(a)(2)(K) for 8

- hr ozone and PM2.5 NAAQSs.
**L. Major s**  **tationa ry**  **s ource**  **p ermitting fees** 

**– Section 110(a)(2)(L)**  Section 110(a)(2)(L) requires SI Ps to require each major stationary source to pay

permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit. State Submittal: EP A's full approval of the Ti tle V program for New Yo rk became effective on November 30, 2001. In New Yo rk State, the Title V Permit Fee Program is established in ECL section 19

- 031 1 (c) requiring the NYSDEC to promulgate regulations that, among other things, requi re applications to identify

and describe facility

emissions in suf

ficient detail to establish the basis for the fees and applicability of requirements of the CAA. ECL section 72

- 0303 requires major stationary sources to pay

operating permit program fees s ufficient to support an appropriation approved b y the legislature for the direct and indirect costs associated with the operating permit program established in section 19

- 031 1. In addition, paragraph 201

- 6.5(a)(7) of 6 NYCRR subpart 201

- 6, the NYSDEC's a pproved Title V program, specifically

states that "The owner and/or operator of a stationary source shall pay fees to the department consistent with the fee schedule authorized by Subpart 482

- 2 of this Ti tle."

EP A Evaluation: EP A has determined that the State has met the requirements for section 1 10(a)(2)(L).25

**M. Consultation**  **with local entities** 
**- Section 110 (a)(2)(M)**  S ection 110(a)(2)(M) requires s t ates to provide for consultation and participation in SI P development b y local political subdivisions affected by the SIP. State Submittal: The NYSDEC established an Inter

- agency Consultation Group (ICG) pursuant to 6 NYCRR Part 240, "Conformit y to State or Federal Implementation Plans of Tr ansportation Plans, Programs, and Projects Developed, Funded or Approved under Ti tle 23 U.S.C. or the Federal T ransit Laws." Members of this group include the Federal Tr ansit Administration, Federal Highway A dministration, the New Yo rk State Department of Tr ansportation, the United States E nvironmental Protection Agency , the New Yo rk State Department of Environmental C onservation, and several Me tropolitan Planning Organizations statewide. The I CG is central to the entire transportation conformity process, and serves as the underpinning for conformity determinations and a s the primary mechanism for ensuring earl y coordination and negotiation among all parties af

fected by transportation c onformity , including the general public, the business community

, and other interested parties. Additional consultation and participation by local political subdivisions are provided through the SI P Ta sk Force that was established on December 22, 2005, which consists of of ficials from thirty

- seven local governments and designated organizations of elected of ficials. Meetings and conference ca lls are held at appropriate times as SIPs are being developed or issues arise.

EP A Evaluation: EP A has determined to find that the State has adequate authorit y and procedures pursuant to ECL section 3

- 0303(3) that fulfill the requirements of section 1 10( a)(2)(M).